Exhibit 2.h
2,205,000 Shares of Trust Issued
Mandatory Exchange Securities
MANDATORY COMMON EXCHANGE TRUST
UNDERWRITING AGREEMENT
[Date]
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
SALOMON BROTHERS INC
as Representatives of the
several Underwriters named in
Schedule I attached hereto
c/o Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. 10167
Ladies and Gentlemen:
Mandatory Common Exchange Trust, a business trust organized
and existing under the laws of Delaware (the "Trust"), proposes, subject to the
terms and conditions stated herein, to issue and sell to the several
underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
2,000,000 shares (the "Firm Shares") of its Trust Issued Mandatory Exchange
Securities, $.01 par value per share (the "TIMES"), and, for the sole purpose of
covering over-allotments in connection with the sale of the Firm Shares, at the
option of the Underwriters, up to an additional 205,000 shares (the "Additional
Shares") of TIMES. The Firm Shares and any Additional Shares purchased by the
Underwriters are referred to herein as the "Shares". The Shares are more fully
described in the Registration Statement referred to below. Each Share will be
exchanged for one or fewer
shares of common stock, par value $0.01 per share (the "Common Stock"), of
FIRSTPLUS Financial Group, Inc., a Nevada corporation ("FPFG"), or for cash
pursuant to the Cash Settlement Alternative (as such term is defined in the
Prospectus (as defined in Section 1(a)(i) hereof)) on the Exchange Date (as such
term is defined in the Prospectus). The Trust will enter into a Purchase
Agreement dated as of the Closing Date (the "Contract") with Banc One Capital
Holdings Corporation (the "Seller") obligating the Seller to deliver to the
Trust on the Exchange Date (as such term is defined in the Prospectus) a number
of shares of Common Stock equal to the product of the Exchange Rate (as such
term is defined in the Prospectus) times the initial number of shares of Common
Stock subject to the Contract. The Seller's obligations under the Contract will
be secured by pledges of collateral pursuant to the terms of a Collateral
Agreement, dated as of _____, 1997 (the "Collateral Agreement"), among the
Seller, The Bank of New York ("BONY"), as collateral agent (in such capacity,
the "Collateral Agent"), and the Trust .
1. Representations and Warranties of the Trust. The Trust
represents and warrants to, and agrees with, the Underwriters and the Seller
that:
(a) A notification on Form N-8A (the "Notification")
of registration of the Trust as an investment company has been filed with the
Securities and Exchange Commission (the "Commission"). The Trust has filed with
the Commission a registration statement, and may have filed an amendment or
amendments thereto, on Form N-2 (Securities Act No. 33-15927 and Investment
Company Act No. 811-7847), for the registration of the Shares under the
Securities Act of 1933, as amended (the "Act"), and the Investment Company Act
of 1940, as amended (the "1940 Act"). Such registration statement, including the
prospectus, financial statements and schedules, exhibits and all other documents
filed as a part thereof, as amended at the time of effectiveness of the
registration statement, including any information deemed to be a part thereof as
of the time of effectiveness pursuant to paragraph (b) of Rule 430A or Rule 434
of the Rules and Regulations of the Commission under the Act (such Rules and
Regulations, together with any Rules and Regulations under the 1940 Act and the
Securities Exchange Act of 1934, the "Regulations"), is herein
2
called the "Registration Statement" and the prospectus, in the form first filed
with the Commission pursuant to Rule 497 of the Regulations or filed as part of
the Registration Statement at the time of effectiveness if no Rule 497 or Rule
434 filing is required, is herein called the "Prospectus". The term "preliminary
prospectus" as used herein means a preliminary prospectus as described in Rule
430 of the Regulations. Any reference herein to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to the Instructions of
Form N-2 which were filed under the 1940 Act on or before the effective date of
the Registration Statement, the date of such preliminary prospectus or the date
of the Prospectus, as the case may be, and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration Statement,
any preliminary prospectus or the Prospectus shall be deemed to refer to and
include (i) the filing of any document with the Commission after the effective
date of the Registration Statement, the date of such preliminary prospectus or
the date of the Prospectus, as the case may be, which is incorporated therein by
reference and (ii) any such document so filed.
(b) 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 497 or Rule 434 of the Regulations, when any
supplement to or amendment of the Prospectus is filed with the Commission, when
any document incorporated therein by reference is filed with the Commission and
at the Closing Date and the Additional Closing Date, if any (as hereinafter
respectively defined), the Notification, 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 Act, the
1940 Act and the Regulations 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
3
made, not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions in the Registration Statement or
the Prospectus made in reliance upon and in conformity with information
furnished in writing to the Trust by the Underwriters or the Seller expressly
for use therein. When any related preliminary prospectus was first filed with
the Commission (whether filed as part of the registration statement for the
registration of the Shares or any amendment thereto or pursuant to Rule 424(a)
of the Regulations) and when any amendment thereof or supplement thereto was
first filed with the Commission, such preliminary prospectus and any amendments
thereof and supplements thereto complied in all material respects with the
applicable provisions of the Act and the Regulations and the 1940 Act and did
not contain an untrue statement of a material fact and did not omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein in light of the circumstances under which they were made not
misleading. No representation and warranty is made in this subsection (b),
however, with respect to any statement or omissions in the Registration
Statement or the Prospectus or any related preliminary prospectus or any
amendment thereof or supplement thereto made in reliance upon and in conformity
with information furnished in writing to the Trust by or on behalf of any
Underwriters or the Seller expressly for use therein. If Rule 434 is used, the
Trust will comply with the requirements of Rule 434.
(c) Deloitte & ▇▇▇▇▇▇, L.L.P., who have certified the
financial statements and supporting schedules included in the Registration
Statement, are independent public accountants as required by the Act and the
Regulations.
(d) 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 or any development involving a prospective material
adverse change in the business, prospects, properties, operations, condition
(financial or other) or results of operations of the Trust, whether or not
arising from transactions in the ordinary course of business, and since the date
of the
4
latest balance sheet presented in the Registration Statement and the Prospectus,
the Trust has not incurred or undertaken any liabilities or obligations, direct
or contingent, which are material to the Trust, except for liabilities or
obligations which are reflected in the Registration Statement and the
Prospectus.
(e) This Agreement and the transactions contemplated
herein have been duly and validly authorized by the Trust and this Agreement has
been duly and validly executed and delivered by the Trust.
(f) The execution, delivery and performance of this
Agreement by the Trust and the consummation by the Trust 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 Trust pursuant to, any material agreement,
instrument, franchise, license or permit to which the Trust is a party or by
which its properties or assets may be bound or (ii) violate or conflict with any
provision of the Declaration or Certificate of Trust of the Trust 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 Trust or
any of its 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 Trust or any of its properties or assets is required for the execution,
delivery and performance by the Trust of this Agreement or the consummation by
the Trust of the transactions contemplated hereby, including the issuance, sale
and delivery of the Shares to be issued, sold and delivered by the Trust
hereunder, except the registration under the 1940 Act of the Trust and under the
Act of the Shares and, if the Shares are no longer listed on the American Stock
Exchange, such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares.
5
(g) All of the outstanding shares of TIMES are duly
and validly authorized and issued, fully paid and nonassessable and were not
issued and are not now in violation of or subject to any preemptive rights. The
Shares, 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 TIMES, the Firm Shares and the Additional Shares conform to the
descriptions thereof contained in the Registration Statement and the Prospectus.
Except as described in the Prospectus, no holder of securities of the Trust has
any rights to the registration of securities of the Trust because of the filing
of the Registration Statement or otherwise in connection with the sale of the
Shares contemplated hereby.
(h) The Trust has been duly organized and is validly
existing as a business trust in good standing under the laws of Delaware. The
Trust 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
which will not in the aggregate have a material adverse effect on the Trust. The
Trust has all requisite power and authority, and all necessary consents,
approvals, authorizations, orders, registrations, qualifications, licenses and
permits of and from all public, regulatory or governmental agencies and bodies,
to own, lease and operate its properties and conduct its business as now being
conducted and as described in the Registration Statement and the Prospectus,
except to the extent that the failure to obtain the foregoing would not have a
material adverse effect on the Trust and, if the Shares are no longer listed on
the American Stock Exchange, except for such consents, approvals,
authorizations, orders, registrations, qualifications, licenses and permits as
may be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares. No such consent, approval,
authorization, order, registration, qualification, license or permit contains a
materially burdensome restriction not adequately disclosed in the Registration
Statement and the Prospectus.
6
(i) Except as described in the Prospectus, there is
no litigation or governmental proceeding to which the Trust is a party or to
which any property of the Trust is subject or which is pending or, to the
knowledge of the Trust, contemplated against the Trust which might result in any
material adverse change or any development involving a material adverse change
in the business, prospects, properties, operations, condition (financial or
other) or results of operations of the Trust taken as a whole or which is
required to be disclosed in the Registration Statement and the Prospectus.
(j) The Trust has not taken and will not 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 TIMES to facilitate
the sale or resale of the Shares.
(k) The financial statements, including the notes
thereto, and supporting schedules included in the Registration Statement and the
Prospectus present fairly the financial position of the Trust as of the dates
indicated; except as otherwise stated in the Registration Statement, said
financial statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis; and the supporting
schedules included in the Registration Statement present fairly the information
required to be stated therein.
(l) The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time they were or hereafter
are filed with the Commission, are permitted to be incorporated by reference in
the Prospectus and, if prepared by or relating to the Trust, complied and will
comply in all material respects with the requirements of the Exchange Act and
the rules and regulations of the Commission under the Exchange Act, and, when
read together with the other information in the Prospectus, at the time the
Registration Statement and any amendments thereto become effective and at the
Closing Date, 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 the light of the circumstances under which they were
made, not misleading.
7
(m) The Trust is registered with the Commission as a
non-diversified closed-end management investment company under the 1940 Act and
no order of suspension or revocation of such registration has been issued or
proceedings therefor initiated or, to the knowledge of the Trust, threatened by
the Commission. No person is serving or acting as an officer or trustee of the
Trust except in accordance with the provisions of the 1940 Act;
(n) The Contract, The Collateral Agreement, the
Administration Agreement between BONY and the Trust (the "Administration
Agreement"), the Custodian Agreement between BONY and the Trust (the "Custodian
Agreement"), the Paying Agent Agreement between BONY and the Trust (the "Paying
Agent Agreement"), the Fund Expense Agreement between the Representatives and
BONY (the "Fund Expense Agreement") and the Fund Indemnity Agreement between the
Representatives and the Trust (the "Fund Indemnity Agreement") (the Contract,
the Collateral Agreement, the Administration Agreement, the Custodian Agreement,
the Paying Agent Agreement, the Fund Expense Agreement and the Fund Indemnity
Agreement are herein collectively called the "Fundamental Agreements") has been
duly authorized, executed and delivered by the Trust and, assuming due
authorization, execution and delivery by the other parties thereto, constitutes
a valid and legally binding agreement of the Trust, enforceable against the
Trust in accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally and to general equity
principles (whether considered in a proceeding in equity or at law).
(o) The Amended and Restated Trust Agreement dated
_______, 1997 (the "Trust Agreement") and the Fundamental Agreements comply with
all applicable provisions of the Act and the 1940 Act, and all approvals of such
agreements required under the 1940 Act by the holders of the TIMES and the
trustees have been obtained and are in full force and effect. The Trust
Agreement and the Fundamental Agreements conform in all material respects to the
descriptions thereof contained in the Prospectus.
8
(p) The Trust is not in default in the performance or
observance of any obligation, covenant or condition contained in any other
agreement or instrument to which it is a party or by which it or any of its
properties may be bound other than this Agreement;
(q) The statements set forth in the Prospectus under
the caption "Description of the TIMES", insofar as they purport to constitute a
summary of the terms of the Shares, under the caption "Certain Federal Income
Tax Considerations", and under the caption "Underwriting", insofar as they
purport to describe the provisions of the laws and agreements referred to
therein, are accurate, complete and fair;
(r) There are no material restrictions, limitations
or regulations with respect to the ability of the Trust to invest its assets as
described in the Prospectus, other than as described therein; and
(s) The Shares and any TIMES outstanding prior to the
issuance of the Shares have been approved for listing on the American Stock
Exchange subject to notice of issuance; and the Trust's Registration Statement
on Form 8-A under the Exchange Act is effective;
(t) Deloitte & Touche L.L.P., who have certified
certain financial statements and supporting schedules included in the
Registration Statement, are independent public accountants as required by the
Act and the Regulations.
2. Representations and Warranties of the Seller. The Seller
represents and warrants to, and agrees with each of the Underwriters and the
Trust that:
(a) The compliance by the Seller with all the
provisions of this Agreement, the Contract, the Collateral Agreement and
Reimbursement Agreement and the consummation of the transactions herein and
therein contemplated will not conflict or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other material agreement or
instrument to which the Seller is a party or by which the Seller is bound or to
which any of the property or assets of the Seller is subject, nor will such
action
9
result in any violation of the provisions of any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Seller or any of the property of the Seller; and no consent, approval,
authorization, order, registration or qualification of or with any such court or
governmental agency or body is required for the compliance by the Seller with or
the consummation by the Seller of the transactions contemplated by this
Agreement, the Contract, or the Collateral Agreement or the Reimbursement
Agreement, except such as may be required by the NASD or the registration under
the Act or the 1940 Act of the Shares and, if the Shares are no longer listed on
the American Stock Exchange, except for such consents, approvals,
authorizations, orders, registrations, qualifications, licenses and permits as
may be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares.
(b) This Agreement has been duly authorized,
executed and delivered by the Seller. Each of the Contract, the Collateral
Agreement and the Reimbursement Agreement have been duly authorized, by the
Seller and when duly executed and delivered by the Seller pursuant to the terms
hereof, and, assuming due authorization, execution and delivery by the other
parties thereto, will constitute a valid and legally binding agreement of the
Seller, enforceable against the Seller in accordance with its terms, subject, as
to enforcement, to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditor's rights generally and to general equity principles (whether considered
in a proceeding in equity or at law).
(c) The Seller has, and immediately prior to the
Closing Date and the Additional Closing Date (as defined in Section 3(c) hereof)
the Seller will have, good and valid title to _______ shares of Common Stock and
_______ shares of Nonvoting Common Stock $_____ par value per share (the
"Nonvoting Stock" and together with the Common Stock, the "Stock") of FPFG
(except with respect to the Common Stock on loan pursuant to a lending agreement
dated ), free and clear of all liens, encumbrances, equities, restrictions,
legends or claims other than those created pursuant to the Collateral Agreement;
each share of Nonvoting
10
Common owned by the Seller is convertible at any time by any person other than
the Seller and its Affiliates or Farm Bureau Insurance Company and its
Affiliates into one share of Common Stock (subject to certain adjustments)
without payment of further consideration; all consents, approvals,
authorizations and orders necessary for the Seller to pledge and assign the
shares of Stock to be pledged and assigned by the Seller pursuant to the
Collateral Agreement have been obtained; the Seller has full right, power and
authority to pledge and assign the shares of Stock to be pledged and assigned by
the Seller pursuant to the Collateral Agreement; and upon delivery of such
shares of Stock and payment therefor pursuant to the Contract, good and valid
title to such shares of Stock, free and clear of all liens, encumbrances,
equities, restrictions, legends or claims, will pass to the Trust.
(d) The representations and warranties of the Seller
set forth in Section 3 of the Collateral Agreement are true and correct on and
as of the date hereof with the same effect as though such representations and
warranties had been set forth in full in this Agreement;
(e) During the period beginning from the date hereof
and continuing to and including the date 90 days after the date of the
Prospectus, the Seller will not offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder, any Common Stock or any securities of
FPFG that are substantially similar to the Common Stock, including but not
limited to any securities that are convertible into or exchangeable for, or that
represent the right to receive, Common Stock or any such substantially similar
securities without your prior written consent; provided however, that to the
extent the Seller has, at the date of the Prospectus or at any time thereafter,
borrowings under a margin loan (which loan shall not be in excess of $____) the
foregoing restrictions shall not apply to sales by the lender or any or all
those shares of Stock that are pledged by the Seller as collateral for such
margin loan upon default or failure to meet a margin call by Seller [and
provided further, that if the Underwriters have not exercised their right to
purchase all the Additional Shares pursuant to subsection 2(b) hereof as of the
30th calendar day after the date of the Prospectus, the agreement of
11
the Seller in this paragraph (e) of subsection 2 shall not apply to those
Additional Shares the Underwriters have not purchased by such date;
(f) Seller has not taken, nor will Seller take,
directly or indirectly, any action which is designed to or which has constituted
or which might reasonably by expected to cause or result in stabilization or
manipulation of the price of any security of the Trust to facilitate the sale or
resale of the TIMES;
(g) 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 497 or Rule 434 of the Regulations, when any
supplement to or amendment of the Prospectus is filed with the Commission, when
any document incorporated therein by reference is filed with the Commission and
at the Closing Date and the Additional Closing Date, if any (as hereinafter
respectively defined), the Notification, 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 Act, the
1940 Act and the Regulations and does not or will not contain and 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;
(h) The Seller is not, and has not during the three
month period preceding the date of this Agreement been, an "affiliate" of the
Trust or FPFG, as such term is defined in Rule 12b-2 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), or an executive officer or
director of FPFG; and
(i) Each Share of Stock owned by the Seller is freely
transferable without registration under Section 5 of the Act by reason of the
exemption set forth in Section 4(1) of the Act.
12
3. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties,
covenants and agreements herein contained, but subject to the terms and
conditions herein set forth, the Trust agrees to sell to the Underwriters and
the Underwriters, severally and not jointly, agree to purchase from the Trust,
at a purchase price per Share of $_______, the number of Firm Shares set forth
opposite the respective names of the Underwriters in Schedule I hereto plus any
additional number of Shares which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 10 hereof.
(b) Payment of the purchase price for, and delivery
of certificates for, the Shares shall be made at the office of Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at
such other place as shall be agreed upon by you and the Trust, at 10:00 A.M. on
the third or fourth business day (as permitted under Rule 15c6-1 under the
Exchange Act) (unless postponed in accordance with the provisions of Section 10
hereof) following the date of the effectiveness of the Registration Statement
(or, if the Trust has elected to rely upon Rule 430A of the Regulations, the
third or fourth business day (as permitted under Rule 15c6-1 under the Exchange
Act) after the determination of the initial public offering price of the
Shares), or such other time not later than ten business days after such date as
shall be agreed upon by you and the Trust (such time and date of payment and
delivery being herein called the "Closing Date"). Payment shall be made to the
Trust by wire transfer in same day funds, against delivery to you for the
respective accounts of the Underwriters of certificates for the Shares to be
purchased by them. Certificates for the Shares shall be registered in such name
or names and in such authorized denominations as you may request in writing at
least two full business days prior to the Closing Date. The Trust will permit
you to examine and package such certificates for delivery at least one full
business day prior to the Closing Date.
(c) In addition, the Trust hereby grants to the
Underwriters the option to purchase up to 205,000 Additional Shares at the same
purchase price per share to be paid by the Underwriters to the Trust for the
Firm
13
Shares as set forth in this Section 3, for the sole purpose of covering
over-allotments in the sale of Firm Shares by the Underwriters. This option may
be exercised at any time, in whole or in part, on or before the thirtieth day
following the date of the Prospectus, by written notice by you to the Trust.
Such notice shall set forth the aggregate number of Additional Shares as to
which the option is being exercised and the date and time, as reasonably
determined by you, when the Additional Shares are to be delivered (such date and
time being herein sometimes referred to as the "Additional Closing Date");
provided, however, that the Additional Closing Date shall not be earlier than
the Closing Date or earlier than the second full business day after the date on
which the option shall have been exercised nor later than the eighth full
business day after the date on which the option shall have been exercised
(unless such time and date are postponed in accordance with the provisions of
Section 10 hereof). Certificates for the Additional Shares shall be registered
in such name or names and in such authorized denominations as you may request in
writing at least two full business days prior to the Additional Closing Date.
The Trust will permit you to examine and package such certificates for delivery
at least one full business day prior to the Additional Closing Date.
The number of Additional Shares to be sold to each Underwriter
shall be the number which bears the same ratio to the aggregate number of
Additional Shares being purchased as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto (or such number
increased as set forth in Section 10 hereof) bears to 2,000,000, subject,
however, to such adjustments to eliminate any fractional shares as you in your
sole discretion shall make.
Payment for the Additional Shares shall be made by wire
transfer in same day funds at the offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ &
▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such other location as
may be mutually acceptable, upon delivery of the certificates for the Additional
Shares to you for the respective accounts of the Underwriters.
4. Offering. Upon your authorization of the release of the
Firm Shares, the Underwriters propose to
14
offer the Shares for sale to the public upon the terms set forth in the
Prospectus.
5. Covenants of the Trust and the Seller.
(a) The Trust covenants and agrees with the
Underwriters that:
(i) If the Registration Statement has not yet been
declared effective the Trust will use its best efforts to cause the Registration
Statement and any amendments thereto to become effective as promptly as
possible, and if Rule 430A is used or the filing of the Prospectus is otherwise
required under Rule 497 or Rule 434, the Trust will file the Prospectus
(properly completed if Rule 430A has been used) pursuant to Rule 497 or Rule 434
within the prescribed time period and will provide evidence satisfactory to you
of such timely filing. If the Trust elects to rely on Rule 434, the Trust will
prepare and file a term sheet that complies with the requirements of Rule 434.
The Trust will notify you promptly (and, if requested
by you, will confirm such notice in writing) (i) when the Registration Statement
and any amendments thereto become effective, (ii) of any request by the
Commission for any amendment of or supplement to the Registration Statement or
the Prospectus or for any additional information, (iii) of the mailing or the
delivery to the Commission for filing of any amendment of or supplement to the
Registration Statement or the Prospectus, (iv) of the issuance by the Trust of
any stop order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto or of the initiation, or the threatening, of
any proceedings therefor, (v) of the receipt of any comments from the
Commission, and (vi) of the receipt by the Trust of any notification with
respect to the suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for that
purpose. If the Commission shall propose or enter a stop order at any time, the
Trust will make every reasonable effort to prevent the issuance of any such stop
order and, if issued, to obtain the lifting of such order as soon as possible.
The Trust will not file any amendment to the Registration Statement or any
amendment of or supplement to the Prospectus (including
15
the prospectus required to be filed pursuant to Rule 497 or Rule 434) that
differs from the prospectus on file at the time of the effectiveness of the
Registration Statement before or after the effective date of the Registration
Statement or file any document under the Exchange Act if such document would be
deemed to be incorporated by reference into the Prospectus to which you shall
reasonably object in writing after being timely furnished in advance a copy
thereof.
(ii) If at any time when a prospectus relating to the
Shares is required to be delivered under the Act any event shall have occurred
as a result of which the Prospectus as then amended or supplemented would, in
the judgment of the Underwriters or the Trust include an 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, 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 Prospectus or Registration Statement to comply
with the Act or the Regulations, or to file under the Exchange Act so as to
comply therewith any document incorporated by reference in the Registration
Statement or the Prospectus or in any amendment thereof or supplement thereto,
the Trust will notify you promptly and prepare and file with the Commission an
appropriate amendment or supplement (in form and substance reasonably
satisfactory to you) which will correct such statement or omission or which will
effect such compliance and will use its reasonable best efforts to have any
amendment to the Registration Statement declared effective as soon as possible.
(iii) The Trust will promptly deliver to you two
signed copies of the Registration Statement, including exhibits and all
documents incorporated by reference therein and all amendments thereto, and the
Trust will promptly deliver to each of the Underwriters such number of copies of
any preliminary prospectus, the Prospectus, the Registration Statement, and all
amendments of and supplements to such documents, if any, and all documents
incorporated by reference in the Registration Statement and Prospectus or any
amendment thereof or supplement thereto, without exhibits in such quantity as
you may reasonably request.
16
(iv) During a period of three years from the
effective date of the Registration Statement, the Trust will furnish to you
copies of (i) all reports to its shareholders; and (ii) all reports, financial
statements and proxy or information statements filed by the Trust with the
Commission or any national securities exchange.
(v) The Trust will apply the net proceeds from the
sale of the Shares as set forth under "Use of Proceeds" in the Prospectus.
(vi) The Trust will use its reasonable best efforts
to cause the Shares to be listed on the American Stock Exchange.
(vii) The Trust, during the period when the
Prospectus is required to be delivered under the Act or the Exchange Act, will
file all documents required to be filed with the Commission pursuant to Section
20 or 30 of the 1940 Act within the time periods required by the 1940 Act and
the rules and regulations thereunder.
(viii) The Trust will make generally available to the
Trust's security holders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement of the Trust (which
need not be audited) complying with Section 11(a) of the Act and the Regulations
(including, at the option of the Trust, Rule 158).
(b) The Seller covenants and agrees with the
Underwriters to execute and deliver signed copies of the Contract, the
Collateral Agreement and the Reimbursement Agreement to the Underwriters at or
before the Closing Date.
6. Payment of Expenses. Whether or not the transactions
contemplated in this Agreement are consummated or this Agreement is terminated,
the Seller hereby agrees to pay all costs and expenses incident to the
performance of the obligations of the Trust hereunder, including those in
connection with (i) preparing, printing, duplicating, filing and distributing
the Registration Statement, as originally filed and all amendments
17
thereof (including all exhibits thereto), any preliminary prospectus, the
Prospectus and any amendments or supplements thereto (including, without
limitation, reasonable fees and expenses of the Seller's and Trust's accountants
and counsel), the underwriting documents (including this Agreement and the
Agreement Among Underwriters and the Selling Agreement) and all other documents
related to the public offering of the Shares (including those supplied to the
Underwriters in quantities as hereinabove stated), (ii) the issuance, transfer
and delivery of the Shares to the Underwriters, including any transfer or other
taxes payable thereon, (iii) the qualification of the Shares under state or
foreign securities or Blue Sky laws, including the costs of printing and mailing
a preliminary and final "Blue Sky Survey" and the reasonable fees of counsel for
the Underwriters and such counsel's disbursements in relation thereto, (iv)
listing the Shares on the American Stock Exchange and the fees and expenses in
connection with the preparation and filing of a registration statement under the
Exchange Act relating to the Shares, (v) filing fees of the Commission and the
National Association of Securities Dealers, Inc.; (vi) the cost of printing
certificates representing the Shares, (vii) all expenses and taxes incident to
the sale and delivery of the shares of Stock to be sold or pledged by the
Seller, (viii) all fees, expenses and costs in connection with the marketing of
the Shares, and (ix) all other costs and expenses incident to the performance by
the Trust and the Seller of their respective obligations hereunder which are not
otherwise specifically provided for in this Section. It is understood, however,
that, except, as provided in this Section, and Sections 9 and 12 hereof, the
Underwriters will pay all of their own costs and expenses, including the
up-front fees of the Administrator, the Custodian and the Paying Agent provided
for in the Fundamental Agreements and the up-front fees of the Trustees, the
fees of their counsel, transfer taxes on resale of any of the TIMES by them, and
any advertising expenses connected with any offers they may make.
7. Conditions of Underwriters' Obligations. The
obligations of the Underwriters to purchase and pay for the Firm Shares and the
Additional Shares, as provided herein, shall be subject to the accuracy of the
representations and warranties of the Trust and the Seller herein contained, as
of the date hereof and as of
18
the Closing Date (for purposes of this Section 7 "Closing Date" shall refer to
the Closing Date for the Firm Shares and any Additional Closing Date, if
different, for the Additional Shares), to the absence from any certificates,
opinions, written statements or letters furnished to you or to Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP ("Underwriters' Counsel") pursuant to this Section 7
of any misstatement or omission, to the performance by the Trust of its
obligations hereunder, and to the following additional conditions:
(a) The Registration Statement shall have become
effective and all necessary stock exchange approval has been received not later
than [if pricing pursuant to Rule 430A 5:30 P.M., New York time, on the date of
this Agreement] [if pricing pursuant to a pricing amendment -- 12:00 P.M., New
York time on the date an amendment to the Registration Statement containing the
public offering price has been filed with the Commission], or at such later time
and date as shall have been consented to in writing by you; if the Trust shall
have elected to rely upon Rule 430A or Rule 434 of the Regulations, the
Prospectus shall have been filed with the Commission in a timely fashion in
accordance with Section 4(a) hereof; and, at or prior to the Closing Date no
stop order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereof shall have been issued and no proceedings
therefor shall have been initiated or threatened by the Commission.
(b) At the Closing Date you shall have received the
opinion of ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Trust,
dated the Closing Date addressed to the Underwriters and the Seller and in form
and substance satisfactory to the Underwriters and the Seller, to the effect
that:
(i) The Trust has been duly organized and is
validly existing as a business trust in good standing under the laws of
Delaware. The Trust is duly qualified and in good standing as a foreign
entity 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
19
failures to be so qualified or in good standing which will not in the
aggregate have a material adverse effect on the Trust. The Trust is
registered with the Commission as a non-diversified closed-end
management investment company under the 1940 Act.
(ii) The Trust has an authorized capital
interest as set forth in the Registration Statement and the Prospectus.
All of the outstanding shares of TIMES are duly and validly authorized
and issued, are fully paid and nonassessable and were not issued in
violation of or subject to any preemptive rights. The Shares to be
delivered on the Closing Date have been duly and validly authorized
and, when delivered by the Trust 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 preemptive
rights. The Firm Shares and the Additional Shares conform to the
descriptions thereof contained in the Registration Statement and the
Prospectus.
(iii) The Shares to be sold under this
Agreement to the Underwriters are duly authorized for listing on the
American Stock Exchange.
(iv) Each of this Agreement and each of the
Fundamental Agreements has been duly and validly authorized, executed
and delivered by the Trust and, assuming due authorization, execution
and delivery by the other parties thereto, constitutes a valid and
legally binding agreement to the Trust, enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(v) The execution, delivery and performance
of this Agreement and each of the Fundamental Agreements and the
20
consummation of the transactions contemplated hereby and thereby by the
Trust 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 Trust pursuant
to, any agreement, instrument, franchise, license or permit
specifically identified to such counsel as being material to its
business to which the Trust is a party or by which the Trust or its
properties or assets may be bound or (B) violate or conflict with any
provision of the Declaration of Trust or Certificate of Formation of
the Trust, or, to the best knowledge of such counsel, any Delaware, New
York or U.S. Federal law or statute, any rule or regulation of any
Delaware, New York or U.S. Federal court or governmental or regulatory
agency or body having jurisdiction over the Trust or any of its
properties or assets or any judgment, decree or order specifically
identified to such counsel. No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or with any
such court, governmental or regulatory agency or body by the Trust is
required for the execution, delivery and performance by the Trust of
this Agreement or any of the Fundamental Agreements or the consummation
of the transactions contemplated hereby or thereby, except for (1) such
as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
Underwriters (as to which such counsel need express no opinion) and (2)
such as have been made or obtained under the Act, the Exchange Act and
the 1940 Act. The opinions set forth in the previous two sentences
shall extend only to such Delaware, New York or U.S. Federal laws,
statutes, rules and regulations as are in their experience typically
applicable to transactions of the type contemplated by this Agreement
and the Fundamental Agreement.
21
(vi) The Registration Statement and the
Prospectus and any amendments thereof or supplements thereto (other
than the financial statements and schedules and other financial data
included or incorporated by reference therein, as to which no opinion
need be rendered) comply as to form in all material respects with the
requirements of the 1940 Act, the Act and the Regulations.
(vii) The Registration Statement is
effective under the Act, and, to the best 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 497 of the Regulations have
been made.
(viii) The statements in the Prospectus
under the caption "Certain Federal Income Tax Considerations", to the
extent that such statements constitute summaries of the legal matters
referred to therein, fairly represent their opinion as to such matters.
(ix) In addition, such opinion shall also
contain a statement that such counsel has participated in conferences
with officers and representatives of the Trust, representatives of the
independent public accountants for the Trust and the Underwriters at
which the Prospectus and related matters were discussed and no facts
have come to the attention of such counsel which have caused such
counsel to believe that either the Registration Statement at the time
it became effective (including the information deemed to be part of the
Registration Statement at the time of effectiveness pursuant to Rule
430A(b) or Rule 434, 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
22
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
financial statements and schedules and other financial data included or
incorporated by reference therein).
In rendering such opinion, such counsel may rely as to matters
of fact, to the extent they deem proper, on certificates of responsible officers
of the Trust 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 Trust, provided that copies of any
such statements or certificates shall be delivered to Underwriters' Counsel.
(c) At the Closing Date you shall have received the
opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Seller, dated the Closing
Date, addressed to the Underwriters and in form and substance satisfactory to
you, to the effect that:
(i) This Agreement and each of the
Fundamental Agreements to which it is a party has been duly authorized,
executed and delivered by the Seller and, assuming due authorization,
execution and delivery by the other parties thereto, each of the
Fundamental Agreements to which it is a party constitutes a valid and
legally binding agreement of the Seller, enforceable against the Seller
in accordance with its terms, subject as to enforcement to bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and
to general
23
equitable principles (whether considered in a proceeding in equity or
at law);
(ii) The execution, delivery and performance
by the Seller of this Agreement and each of the Fundamental Agreements
to which it is a party and the consummation by the Seller of the
transactions contemplated hereby and thereby do not and will not (A)
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 Seller pursuant to, any agreement (other than the
Contract and the Collateral Agreement) or instrument, specifically
identified to such counsel as being material to its business to which
the Seller is a party or by which the Seller or any of its properties
or assets may be bound or (B) violate any provision of the certificate
of incorporation or code of regulations of the Seller or, to the best
knowledge of such counsel, any Ohio or U.S. Federal law or statute or
any rule or regulation of any Ohio or U.S. Federal court or government
or regulatory agency or body having jurisdiction over the Seller or any
of its properties or assets or any judgment, decree or order
specifically identified to such counsel. No consent, approval,
authorization, order, registration, filing, qualification, license or
permit of or with any such court or governmental or regulatory agency
or body is required for the execution, delivery and performance by the
Seller of this Agreement or any of the Fundamental Agreements to which
it is a party or the consummation by the Seller of the transactions
contemplated hereby or thereby. The opinions set forth in the previous
two sentences shall extend only to such Ohio or U.S. Federal laws,
statutes, rules and regulations as are in their experience typically
applicable to transactions of the type contemplated by this Agreement,
the Reimbursement Agreement and the
24
Fundamental Agreements to which the Seller is a party.
(iii) Assuming due authorization,
execution and delivery thereof by the Trust and the Collateral Agent,
the Collateral Agreement, together with the delivery of (x) the
certificates in registered form representing the Stock pledged
thereunder by the Seller and proper evidence of any U.S. Treasury
securities pledged thereunder by the Seller and (y) undated stock and
transfer powers with respect thereto duly endorsed in blank, to the
Collateral Agent for the benefit of the Trust in the State of New York
creates in favor of the Collateral Agent for the benefit of the Trust a
perfected security interest in such Stock under the Uniform Commercial
Code as in effect in the State of New York (the "New York UCC"); upon
such delivery, at the Closing Date, assuming that (A) the Collateral
Agent and the Trust will acquire the security interest in such shares
of Stock and U.S. Treasury securities in good faith and without notice
of any adverse claim (within the meaning of the New York UCC) and (B)
Seller has rights in the shares of Stock and U.S. Treasury Securities
subject to such Collateral Agreement, the Collateral Agent will acquire
such security interest in such shares of Stock and U.S. Treasury
securities for the benefit of the Trust free of any adverse claims
(within the meaning of the New York UCC).
(iv) Upon payment for and delivery of
shares of Common Stock in accordance with the Contract and Collateral
Agreement, assuming due authorization, execution and delivery thereof
by the Trust and the Collateral Agent, and assuming that (A) the Seller
continues to be the sole registered owner of the shares of Common Stock
to be sold by it, (B) the certificates representing such shares do not
contain any notation of liens or restrictions and (C) the purchasers of
Shares will acquire such shares in good faith and without notice of any
adverse claims (within the meaning
25
of the New York UCC), the purchasers will acquire all of the rights
of the Seller in the shares of Common Stock and will also acquire their
interest in such shares free of any adverse claims (within the meaning
of the New York UCC).
(v) Each share of Nonvoting Common owned by
the Seller is by its terms as set forth in the Articles of
Incorporation of the Company convertible at any time by any person
other than the Seller and its Affiliates and Farm Bureau Life Insurance
Company and its Affiliates into one share of Common Stock without
payment of further consideration.
(vi) The Seller is not, and has not during
the three month period preceding the date of this Agreement been, an
"affiliate" of the Trust or FPFG, as such term is defined in Rule 12b-2
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or an executive officer or director of FPFG; and
(vii) Each Share of Common Stock owned by
the Seller is freely transferable without registration under Section 5
of the Act by reason of the exemption set forth in Section 4(1) of the
Act.
(d) All proceedings taken in connection with the sale
of the Firm Shares and the Additional Shares as herein contemplated shall be
satisfactory in form and substance to you and to Underwriters' Counsel, and the
Underwriters shall have received from said Underwriters' Counsel a favorable
opinion, dated as of the Closing Date with respect to the issuance and sale of
the Shares, the Registration Statement and the Prospectus and such other related
matters as you may reasonably require, and the Trust shall have furnished to
Underwriters' Counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(e) At the Closing Date you shall have received a
certificate of the managing trustee of the
26
Trust, dated the Closing Date, to the effect that (i) the condition set forth in
subsection (a) of this Section 7 has been satisfied, (ii) as of the date hereof
and as of the Closing Date the representations and warranties of the Trust set
forth in Section 1 hereof are accurate, (iii) as of the Closing Date the
obligations of the Trust to be performed hereunder on or prior thereto have been
duly performed and (iv) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, there has
not been any material adverse change, or any development involving a material
adverse change, in the business, prospects, properties, operations, condition
(financial or otherwise) or results of operations of the Trust, except in each
case as described in or contemplated by the Prospectus.
(f) (i) There shall not have occurred any change, or
any development involving a prospective change, in or affecting the general
affairs, management, financial position, results of operations, prospects,
investment objectives, investment policies or liabilities of the Trust and its
subsidiaries taken as a whole, otherwise than as set forth or contemplated in
the Prospectus, (ii) FPFG and its subsidiaries, taken as a whole shall not have
sustained since December 31, 1996 any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, and (iii) there shall not have been any change in the outstanding
capital stock of FPFG in excess of _____ shares or long term debt (net of
current maturities) and long term debt (net of current maturities) of the
Company in excess of $ on a consolidated basis or any change, or any development
involving a prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of FPFG and
its subsidiaries, taken as a whole, the effect of which, in any such case
described in clause (i), (ii) or (iii), is in your reasonable judgment so
material and adverse as to make it impracticable or inadvisable to proceed with
the public offering or the delivery of the Shares being issued at the Closing
Date on the terms and in the manner contemplated in the Prospectus.
27
(g) On or after the date hereof (i) no downgrading
shall have occurred in the rating accorded FPFG's debt securities or preferred
stock by any "nationally recognized statistical rating organization," as that
term is defined by the Commission for purposes of Rule 436(g)(2) under the Act,
and (ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of any
of FPFG's debt securities or preferred stock.
(h) On or after the date hereof there shall not have
occurred any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange, the American
Stock Exchange or Nasdaq; (ii) a suspension or material limitation in trading in
the securities of FPFG or the Trust on Nasdaq or the American Stock Exchange;
(iii) a general moratorium on commercial banking activities declared by either
U.S. Federal or New York State authorities; or (iv) the outbreak or escalation
of hostilities involving the United States or the declaration by the United
States of a national emergency or war, if the effect of any such event specified
in this clause (iv) in the reasonable judgment of the Underwriters makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares being issued at the Closing Date on the terms and in the manner
contemplated in the Prospectus.
(i) Each Fundamental Agreement shall have been
executed and delivered by all parties thereto and the Seller shall have
delivered to the Collateral Agent the number of shares of Stock and/or U.S.
Treasury securities required by the Collateral Agreement to be initially pledged
thereunder in accordance with the requirements of the Collateral Agreement.
(j) The Trust and the Seller shall have furnished or
caused to be furnished to you at the Closing Date certificates of officers of
the Trust and the Seller satisfactory to you as to the accuracy of the
representations and warranties of the Trust and the Seller, respectively, herein
and in the Contract and Collateral Agreement at and as of the Closing Date, as
to the satisfaction and performance by the Trust and the Seller of all of their
respective obligations hereunder
28
and thereunder to be performed at or prior to the Closing Date, as to the
matters set forth in subsections (a) and (f) of this Section and as to such
other matters as you may reasonably request.
(k) Prior to the Closing Date the Trust shall have
furnished to you such further information, certificates and documents as you may
reasonably request.
(l) At the Closing Date, the Shares shall have been
approved for listing on the American Stock Exchange upon notice of issuance.
If any of the conditions specified in this Section 7 shall not
have been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to you or to
Underwriters' Counsel pursuant to this Section 7 shall not be in all material
respects reasonably satisfactory in form and substance to you and to
Underwriters' Counsel, all obligations of the Underwriters hereunder may be
cancelled by you at, or at any time prior to, the Closing Date and the
obligations of the Underwriters to purchase the Additional Shares may be
cancelled by you at, or at any time prior to, the Additional Closing Date.
Notice of such cancellation shall be given to the Trust and the Seller in
writing, or by telephone, telex or telegraph, confirmed in writing.
8. Indemnification.
(a) The Seller agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act,
against any and all losses, liabilities, claims, damages and expenses whatsoever
as incurred (including but not limited to reasonable attorneys' fees and any and
all expenses whatsoever reasonably incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or
29
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, as originally filed or any
amendment thereof, or any related preliminary prospectus or the Prospectus, or
in any supplement thereto or amendment thereof, 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;
provided, however, that the Seller will not be liable in any such case to the
extent but only to the extent that any such loss, liability, claim, damage or
expense 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 Seller or the Trust
by or on behalf of any Underwriter expressly for use therein; and provided,
further, that this indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, liabilities, claims, damages or expenses
purchased Shares, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Trust shall have furnished
any such amendments or supplements thereto) was not sent or given by or on
behalf of such Underwriter to such person, if such is required by law, at or
prior to the written confirmation of the sale of such Shares to such person and
if the Prospectus (as so amended or supplemented, but excluding documents
incorporated or deemed to be incorporated by reference therein) would have
corrected the defect giving rise to such loss, liability, claim, damage or
expense, it being understood that this proviso shall have no application if such
defect shall have been corrected in a document which is incorporated or deemed
to be incorporated by reference in the Prospectus. This indemnity agreement will
be in addition to any liability which the Seller may otherwise have including
under this Agreement.
(b) Each Underwriter severally, and not jointly,
agrees to indemnify and hold harmless the Trust, the Seller, each of the
trustees or directors thereof, each of the officers of the Trust who shall have
signed the Registration Statement, and each other person, if any, who controls
the Trust or the Seller within the meaning of Section 15 of the Act or Section
30
20(a) of the Exchange Act, against any losses, liabilities, claims, damages and
expenses whatsoever as incurred (including but not limited to reasonable
attorneys' fees and any and all expenses whatsoever reasonably incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), jointly or severally, to which they or any of them
may become subject under the Act, or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (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
any amendment thereof, or any related preliminary prospectus or the 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,
in each case to the extent, but only to the extent, that any such loss,
liability, claim, damage or expense 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 Seller or the Trust by or on behalf of any Underwriter through
you expressly for use therein; provided, however, that in no case shall any
Underwriter be liable or responsible for any amount in excess of the
underwriting discount applicable to the Shares purchased by such Underwriter
hereunder. This indemnity will be in addition to any liability which any
Underwriter may otherwise have including under this Agreement. The Trust
acknowledges that the statements set forth in the last paragraph of the cover
page and under the caption "Underwriting" in the Prospectus constitute the only
information furnished in writing by or on behalf of any Underwriter expressly
for use in the Registration Statement as originally filed or in any amendment
thereof, any related preliminary prospectus or the Prospectus or in any
amendment thereof or supplement thereto, as the case may be.
(c) Promptly after receipt by an indemnified party
under subsection (a) or (b) above of notice of the commencement of any action,
such indemnified
31
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party (i) shall not relieve it from any
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) shall not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification provided in paragraph (a) or (b) above. In
case any such action is brought against any indemnified party, and it notifies
an indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein, and to the extent 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
reasonably satisfactory to such indemnified party. Notwithstanding the
foregoing, the indemnified party or parties shall have the right to employ its
or their own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of such indemnified party or parties unless (i) the
employment of such counsel shall have been authorized in writing by the
indemnifying party in connection with the defense of such action, (ii) the
indemnifying party shall not have employed counsel to have charge of the defense
of such action within a reasonable time after notice of commencement of the
action, or (iii) such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them which are different
from or additional to those available to one or all of the indemnifying parties
(in which case the indemnifying parties shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties), in any of
which events the reasonable fees and expenses of such counsel shall be borne by
the indemnifying parties; provided, however, that in no event shall the
indemnifying party be liable for the expenses of more than one separate counsel
(plus any local counsel) representing the indemnified parties who are parties to
such action except to the extent one or more indemnified parties assert defenses
in conflict with defenses asserted by the other indemnified parties.
32
Anything in this subsection to the contrary notwithstanding, an indemnifying
party shall not be liable for any settlement of any claim or action effected
without its written consent; provided, however, that such consent was not
unreasonably withheld.
9. Contribution. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 8 hereof is
for any reason held to be unavailable from any indemnifying party or is
insufficient to hold harmless a party indemnified thereunder, the Seller and the
Underwriters shall contribute to the aggregate losses, claims, damages,
liabilities and expenses of the nature contemplated by such indemnification
provision (including any investigation, legal and other expenses reasonably
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claims asserted, but after deducting any contribution
received by the indemnified party from persons, other than the indemnifying
party, who may also be liable for contribution, including persons who control
the indemnified party within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act, and officers of the Trust who signed the Registration
Statement) as incurred to which the Seller and one or more of the Underwriters
may be subject, in such proportions as is appropriate to reflect the relative
benefits received by the Seller and the Underwriters from the offering of the
Shares or, if such allocation is not permitted by applicable law or
indemnification is not available as a result of the indemnifying party not
having received notice as provided in Section 8 hereof, in such proportion as is
appropriate to reflect not only the relative benefits referred to above but also
the relative fault of the Seller and the Underwriters in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Seller and the Underwriters shall be
deemed to be in the same proportion as (x) the total proceeds from the offering
(net of underwriting discounts and commissions but before deducting expenses)
received by the Trust and (y) the underwriting discounts and commissions
received by the Underwriters, respectively, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault of the Seller and
of the Underwriters
33
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 Seller or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Seller and
the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 9 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this Section 9, (i) in no
case shall any Underwriter be liable or responsible for any amount in excess of
the underwriting discount or commission applicable to the Shares purchased by
such Underwriter hereunder, and (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. Notwithstanding the provisions of this Section 9 and the
preceding sentence, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages that such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. For purposes of this Section 9, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each person, if any, who controls the Seller within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act, each officer of the Trust who
shall have signed the Registration Statement and each officer and director of
the Seller, and each trustee of the Trust, shall have the same rights to
contribution as the Seller, subject in each case to clauses (i) and (ii) of this
Section 9. 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, notify each party or parties from whom
34
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 obligation it or they may have under this Section 9 or otherwise. No party
shall be liable for contribution with respect to any action or claim settled
without its consent; provided, however, that such consent was not unreasonably
withheld.
10. Default by an Underwriter.
(a) If any Underwriter or Underwriters shall default
in its or their obligation to purchase Firm Shares or Additional Shares
hereunder, and if the Firm Shares or Additional Shares with respect to which
such default relates do not (after giving effect to arrangements, if any, made
by you pursuant to subsection (b) below) exceed in the aggregate 10% of the
number of Firm Shares or Additional Shares, then the Firm Shares or Additional
Shares to which the default relates shall be purchased by the non-defaulting
Underwriters in proportion to the respective proportions which the numbers of
Firm Shares set forth opposite their respective names in Schedule I hereto bear
to the aggregate number of Firm Shares set forth opposite the names of the
non-defaulting Underwriters.
(b) In the event that such default relates to more
than 10% of the Firm Shares or Additional Shares, as the case may be, you may in
your discretion arrange for yourself or for another party or parties (including
any non-defaulting Underwriter or Underwriters who so agree) to purchase such
Firm Shares or Additional Shares, as the case may be, to which such default
relates on the terms contained herein. In the event that within five calendar
days after such a default you do not arrange for the purchase of the Firm Shares
or Additional Shares, as the case may be, to which such default relates as
provided in this Section 10, this Agreement or, in the case of a default with
respect to the Additional Shares, the obligations of the Underwriters to
purchase and of the Trust to sell the Additional Shares shall thereupon
terminate, without liability on the part of the Trust or the Seller with respect
thereto (except in each case as provided in Section 6, 8(a) and 9 hereof) or the
Underwriters, but nothing in this Agreement shall relieve a defaulting
Underwriter, the
35
Trust or Underwriters of its or their liability, if any, to the other
Underwriters, the Trust and the Seller for damages occasioned by its or their
default hereunder.
(c) In the event that the Firm Shares or
Additional Shares to which the default relates are to be purchased by the
non-defaulting Underwriters, or are to be purchased by another party or parties
as aforesaid, you or the Trust or the Seller shall have the right to postpone
the Closing Date or Additional Closing Date, as the case may be for a period,
not exceeding five business days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus or in
any other documents and arrangements, and the Trust agrees to file promptly any
amendment or supplement to the Registration Statement or the Prospectus which,
in the opinion of Underwriters' Counsel, may thereby be made necessary or
advisable. The term "Underwriter" as used in this Agreement shall include any
party substituted under this Section 10 with like effect as if it had originally
been a party to this Agreement with respect to such Firm Shares and Additional
Shares.
11. Survival of Representations and Agreements. All
representations and warranties, covenants and agreements of the Underwriters,
the Trust and the Seller contained in this Agreement, including the agreements
contained in Section 6, the indemnity agreements contained in Section 8 and the
contribution agreements contained in Section 9, shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
any Underwriter or any controlling person thereof or by or on behalf of the
Trust, any of its officers and directors or any controlling person thereof, and
shall survive delivery of and payment for the Shares to and by the Underwriters.
The representations contained in Section 1 and the agreements contained in
Sections 6, 8, 9 and 12(d) hereof shall survive the termination of this
Agreement, including termination pursuant to Section 10 or 12 hereof.
12. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective, upon the later of when (i) you, the
Seller and the Trust shall have received notification of the effectiveness
36
of the Registration Statement or (ii) the execution of this Agreement. If
either the initial public offering price or the purchase price per Share has not
been agreed upon prior to 5:00 P.M., New York time, on the fifth full business
day after the Registration Statement shall have become effective, this Agreement
shall thereupon terminate without liability to the Trust, the Seller or the
Underwriters except as herein expressly provided. Until this Agreement becomes
effective as aforesaid, it may be terminated by the Trust or the Seller by
notifying you or by you notifying the Trust and the Seller. Notwithstanding the
foregoing, the provisions of this Section 12 and of Sections 1, 6, 8 and 9
hereof shall at all times be in full force and effect.
(b) You shall have the right to terminate this
Agreement at any time prior to the Closing Date or the obligations of the
Underwriters to purchase the Additional Shares at any time prior to the
Additional Closing Date, as the case may be, if (A) any domestic or
international event or act or occurrence has materially disrupted, or in your
opinion will in the immediate future materially disrupt, the market for the
Trust's or FPFG's securities or securities in general; or (B) if trading on the
New York or American Stock Exchanges or the Nasdaq National Market shall have
been suspended, or minimum or maximum prices for trading shall have been fixed,
or maximum ranges for prices for securities shall have been required, on the New
York or American Stock Exchanges or the Nasdaq National Market by the New York
or American Stock Exchanges or the NASD or by order of the Commission or any
other governmental authority having jurisdiction; or (C) if a banking moratorium
has been declared by a state or U.S. Federal authority or if any new restriction
materially adversely affecting the distribution of the Firm Shares or the
Additional Shares, as the case may be, shall have become effective; or (D) if
any downgrading shall have occurred in the rating of FPFG's debt securities or
preferred stock by any "nationally recognized statistical rating-organization"
(as defined for purposes of Rule 436(g) under the Act shall have occurred; or
(E) (i) if there is an outbreak or escalation of hostilities involving the
United States or there is a declaration of a national emergency or war by the
United States or (ii) if there shall have been such change in political,
financial or economic conditions, if the effect of any such event in (i) or
37
(ii) specified in this clause (D) as in your reasonable judgment makes it
impracticable or inadvisable to proceed with the public offering, sale or
delivery of the Firm Shares or the Additional Shares, as the case may be, on the
terms contemplated by the Prospectus.
(c) Any notice of termination pursuant to this
Section 12 shall be by telephone, telefacsimile, telex, or telegraph, confirmed
in writing by letter.
(d) If this Agreement shall be terminated pursuant
to any of the provisions hereof (otherwise than pursuant to Section 10(b)
hereof), or if the sale of the Shares provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth herein is
not satisfied or because of any refusal, inability or failure on the part of the
Trust or the Seller to perform any agreement herein or comply with any provision
hereof, the Seller will, subject to demand by you, reimburse the Underwriters
for all out-of-pocket expenses (including the reasonable fees and expenses of
their counsel with respect to the transactions contemplated by this Agreement
exclusive of, but not including, the initial structuring and organization of the
Trust on behalf of Bear, ▇▇▇▇▇▇▇ & Co. Inc.), incurred by the Underwriters in
connection herewith.
13. Notice. All communications hereunder, except as may be
otherwise specifically provided herein, shall be in writing and , if sent to any
Underwriter, shall be mailed, delivered, or telexed or telegraphed and confirmed
in writing, to such Underwriter c/o Bear, ▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇.▇. 10167, Attention: _____________ and Salomon Brothers Inc, ▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. 10048, Attention: ________; if sent to the Trust,
shall be mailed, delivered, or telegraphed and confirmed in writing to the
Trust, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇; and if sent to the Seller, shall be mailed, delivered or
telegraphed and confirmed in writing to the Seller, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel.
14. Parties. This Agreement shall insure solely to the benefit
of, and shall be binding upon, the Underwriters, the Seller and the Trust and
the controlling
38
persons, directors, officers, employees and agents referred to in Section 8
and 9, and their respective successors and assigns, and no other person shall
have or be construed to have any legal or equitable right, remedy or claim under
or in respect of or by virtue of this Agreement or any provision herein
contained. The term "successors and assigns" shall not include a purchaser, in
its capacity as such, of Shares from any of the Underwriters.
15. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, but without
regard to principles of conflicts of law.
39
If the foregoing correctly sets forth the understanding
between you, the Trust and the Seller, please so indicate in the space provided
below for that purpose, whereupon this letter shall constitute a binding
agreement among us.
Very truly yours,
MANDATORY COMMON EXCHANGE TRUST
By: ________________________
as Trustee
By: ________________________
as Trustee
By: ________________________
as Trustee
BANC ONE CAPITAL HOLDINGS
CORPORATION
By: ________________________
Accepted as of the date first above written
BEAR, ▇▇▇▇▇▇▇ & CO. INC. SALOMON BROTHERS INC
By: ____________________ By: _____________________
On behalf of themselves and the other Underwriters named in Schedule I hereto.
SCHEDULE I
Number of Firm
Name of Underwriter Shares to be Purchased
------------------- ----------------------
Bear, ▇▇▇▇▇▇▇ & Co. Inc...........................
Salomon Brothers Inc..............................
------------
Total. . . . . . .
============
41