EXHIBIT 1(c)
Depositary Shares
Each Representing a Fraction
of a Share of Preferred Stock
▇▇▇▇▇▇ BROTHERS HOLDING INC.
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 Inc., a Delaware corporation (the
"Company"), 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 number of shares identified in
Schedule I hereto (the "Firm Shares") of the Company's preferred stock, par
value $1.00 per share (the "Preferred Stock") identified in Schedule I
hereto. In addition, if so indicated in Schedule I the Company proposes to
grant to the Underwriters an option to purchase up to an additional number of
shares of the Preferred Stock identified in Schedule I hereto on the terms
and for the purposes set forth in Section 2 (the "Option Shares"). The Firm
Shares and the Option Shares, if purchased, are hereinafter collectively
called the "Shares". The Shares are to be deposited by you or on your behalf
against delivery of Depositary Receipts (the "Depositary Receipts") to be
issued by _____________, as Depositary (the "Depositary"), under a Deposit
Agreement, dated as of ___________, 19__ (the "Deposit Agreement"), among the
Company, the Depositary and holders from time to time of the Depositary
Receipts issued thereunder. The Depositary Receipts will evidence Depositary
Shares (the "Depositary Shares"), and each Depositary Share will represent
the fraction of a share of Preferred Stock identified in Schedule I. The
number of Depositary Shares in respect of Firm Shares to be purchased by each
Underwriter is also identified in Schedule I. 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. This is to confirm the agreement
concerning the purchase of the Shares from the Company by the Underwriters
named in Schedule II hereto.
1. REPRESENTATION 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
Shares and the Depositary Shares 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 Shares and the Depositary Shares 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, as
amended (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
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Prospectus, as the case may be, and deemed to be incorporated
therein by reference.
(b) As of the date hereof, when the Final Prospectus is first
filed with the Commission pursuant to Rule 424, when, before either
Delivery Date (hereinafter defined), any amendment to the
Registration Statement becomes effective, when, before either
Delivery Date, any Incorporated Document is filed with the
Commission, when any supplement to the Final Prospectus is filed
with the Commission and at each Delivery 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 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 statement therein not
misleading; on the date the Final Prospectus is filed with the
Commission pursuant to Rule 424 and on each Delivery 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
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Final Prospectus, as they may be amended or supplemented.
(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 accounts 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 development which materially
affects the
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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) The Shares conform to the description thereof contained in
the Final Prospectus, are duly and validly authorized, and, when
issued and delivered against payment therefor as provided in this
Agreement, will be validly issued, fully paid and non-assessable. The
Depositary Shares representing the Shares have been duly and validly
authorized by the Company; and assuming the due execution by the
Depositary of the Deposit Agreement and the due execution by the
Depositary and, if required by the Deposit Agreement, the Registrar
of the Depositary Receipts in accordance with the terms of the Deposit
Agreement and upon the deposit by or on behalf of the Underwriters of
the Shares with the Depositary pursuant to the Deposit Agreement, the
Depositary Shares will represent legal and valid interests in the
Shares and the Depositary Receipts will constitute valid evidence of
such interests in the Shares and will be entitled to the benefits of
the Deposit Agreement.
(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 any 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 or
the Deposit Agreement will not constitute a breach of, 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, any of the
Named Subsidiaries or their property. Except as set forth in the
Final Prospectus or as required by the Securities Act, the Exchange
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 execution, deliver and
performance of this Agreement or the Deposit Agreement.
(j) The Company and each of 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
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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 paragraph (g) of
Section 6 hereof and all other documents delivered by the Company
or its representatives in connection with the issuance and sale
of the Shares and the Depositary Shares 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. SALE AND PURCHASE OF THE SHARES. The Company 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 Company the number of
Firm Shares set forth opposite the name of Underwriter in Schedule II hereto.
The obligations of the Underwriters under this Agreement are several and not
joint.
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In addition, the Company grants to the Underwriters an option to
purchase up to an additional number of Option Shares indicated in Schedule I
hereto. Such option is granted solely for the purpose of covering
over-allotments in the sale of Firm Shares and is exercisable as provided in
Section 3 hereof. Option Shares shall be purchased severally for the account
of the Underwriters in proportion to the number of Firm Shares set forth
opposite the name of such Underwriters in Schedule II hereto. The respective
purchase obligations of each Underwriter with respect to the Option Shares
shall be adjusted by the Representatives so that no Underwriter shall be
obligated to purchase Option Shares other than in 100 share amounts. The
price of both the Firm Shares and any Option Shares shall be the price per
share indicated in Schedule I hereto.
3. DELIVERY AND PAYMENT. Delivery by the Company of the Firm
Shares to the Representatives for the respective accounts of the several
Underwriters and payment by the Underwriters therefor by certified or
official bank check or checks payable in, or by wire transfer of, immediately
available (federal) funds to or upon the order of the Company 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 9 hereof (such date
and time of delivery and payment for the Firm Shares being herein called the
"First Delivery Date").
The Firm Shares will be registered in such names and in such
authorized denominations as the Representatives may request no less than two
full business days in advance of the First Delivery Date. The Company agrees
to have the Firm Shares available for inspection, checking and packaging by
the Representatives at such place as is designated by the Representatives,
not later than 1:00 p.m., New York City time, on the business day prior to
the First Delivery Date.
The certificates representing the Firm Shares will be delivered by
the Representatives to, and deposited with, the Depositary against delivery
of Depositary Receipts representing Depositary Shares issued in respect of
such Firm Shares. Such Depositary Receipts shall be issued in such
denominations and registered in such names as the Representatives shall
request, and will be made available for checking and packaging at the above
office of the Company at least twenty-four hours prior to the First Delivery
Date.
At any time on or before the thirtieth day after the date as of
which the Registration Statement is declared effective by the Commission, the
option granted in Section 2 may be exercised by written notice being given to
the Company by the Representatives. Such notice shall set forth the
aggregate number of Option Shares as to which the option is being exercised,
the names in which the Option Shares are to be
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registered, the denominations in which the Option Shares are to be issued and
the date and time, as determined by the Representatives, when the Option
Shares are to be delivered provided, however, that this date and time shall
not be earlier than the First Delivery Date nor earlier than the second
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 Shares are delivered are
sometimes referred to as the "Second Delivery Date" and the First Delivery
Date and the Second Delivery Date are sometimes referred to as a "Delivery
Date".
Delivery by the Company of the Option Shares to the Representatives
for the respective accounts of the several Underwriters and payment by the
Underwriters therefor by certified or official bank check or checks payable
in, or by wire transfer of, immediately available (federal) funds to or upon
the order of the Company shall take place at the office and at the time
specified in Schedule I hereto, on the Second Delivery Date, which date and
time may be postponed by agreement between the Representatives and the
Company or as provided in Section 9 hereof.
The Option Shares will be registered in such names and in such
authorized denominations as the Representatives may request in the aforesaid
written notice. The Company agrees to have the Option Shares available for
inspection, checking and packaging by the Representatives at such place as is
designated by the Representatives, not later than 1:00 p.m., New York City
time, on the business day prior to the Second Delivery Date.
The certificates representing the Option Shares will be delivered by
the Representatives to, and deposited with, the Depositary against delivery
of Depositary Receipts representing Depositary Shares issued in respect of
such Option Shares. Such Depositary Receipts shall be issued in such
denominations and registered in such names as the Representatives shall
request, and will be made available for checking and packaging at the above
office of the Company at least twenty-four hours prior to the Second Delivery
Date.
4. OFFERING BY UNDERWRITERS. The Company hereby confirms 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 Depositary Shares has been terminated, the Representatives
will so advise the Company.
5. AGREEMENT. The Company agrees with the several Underwriters
that:
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(a) The Company will cause the Final Prospectus to be filed with
the Commission pursuant to Rule 424 not later than 10:00 a.m., New York
City time, on the business day following the date of this Agreement and
will promptly 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 Shares and
the Depositary Shares 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
institution or threatening of any proceedings for that purpose and (E) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares and the Depositary Shares
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 the Shares and the Depositary
Shares, the Company will not file any amendment of the Registration
Statement or amendment or supplement to the Final Prospectus (except an
amendment 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 will 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 4, the
Company will not 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 the Company will 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 during which a prospectus relating to the
Shares and the Depositary Shares 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, the Company promptly will
prepare and file with the Commission an amendment or
9
supplement which will correct such statement or omission or an amendment
which will effect such compliance and will 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) The Company will deliver to the Representatives, without
charge, (i) signed copies of the Registration Statement relating to the
Shares and the Depositary Shares 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
the First Delivery Date (excluding exhibits) as the Representatives may
reasonably request.
(d) During such period as a prospectus is required by law to be
delivered by an Underwriter or dealer, the Company will 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) The Company will make generally available to its 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) The Company will furnish such information, execute such
instruments and take such actions as may be required to qualify the
Shares and the Depositary Shares for offering and sale under the laws of
such jurisdictions as the Representatives may designate and will maintain
such qualifications in effect so long as required for the distribution of
the Shares and the Depositary Shares; provided, however, that the Company
shall not 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 Depositary Shares are outstanding, the Company
will 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.
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(h) If the Company has applied for the listing of the Shares or
Depositary Shares on the New York Stock Exchange Inc. (the "NYSE"), it
will 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 on the later of the business day following either
the Second Delivery Date or following the date on which any price
restrictions on the sale of the Shares or the Depositary Shares are
terminated, without the prior consent of the Representatives, the Company
will not offer, sell, contract to sell or otherwise dispose of any shares
of Preferred Stock (other than the Shares and the Depositary Shares), or
sell or grant options, rights or warrants with respect to any shares of
Preferred Stock covered by the Registration Statement or any other
registration statement filed under the Securities Act.
(j) The Company will use its best efforts to do and perform all
things to be done and performed hereunder prior to each Delivery Date and
to satisfy all conditions precedent to the delivery of the Shares and the
Depositary Shares.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters to purchase the Shares shall be subject to
the accuracy in all material respects of the representations and warranties
on the part of the Company contained herein as of the date hereof and each
Delivery 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 6, to the performance by the Company of
its 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 10:00 a.m., New York
City time, on the 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, 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
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specified in the letter referred to in paragraph (h) of this Section 6
which, in the judgment of the Representatives, makes it impracticable or
inadvisable to proceed with the offering and delivery of the Depositary
Shares representing such Shares as contemplated by the Registration
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 day of each Delivery 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 Deposit Agreement, the Shares, the Depositary Shares
and the Depositary Receipts conform in all material respects to the
descriptions thereof contained in the Final Prospectus.
(iii) The Company has an authorized capitalization as set
forth in the Final Prospectus, and all of the issued shares of
capital stock of the Company (including the Shares being delivered on
such Delivery Date) have been duly and validly authorized and issued,
are fully paid and non-assessable and conform to the description
thereof contained in the Prospectus; the Depositary Shares representing
the Shares delivered on such Delivery Date have been duly and validly
authorized by the Company; and assuming the due execution by the
Depositary of the Deposit Agreement and the due execution by the
Depositary and, if required by the Deposit Agreement, the Registrar
of the Depositary Receipts in accordance with the terms of the
Deposit Agreement and upon the deposit by or on behalf of the
Underwriters of the Shares with the Depositary pursuant to the
Deposit Agreement, such Depositary Shares will represent legal and
valid interests in the Shares delivered on such Delivery Date and the
Depositary Receipts will constitute valid evidence of such interests
in such Shares and will be entitled to the benefits of the Deposit
Agreement.
(iv) There are no preemptive or other rights to subscribe for
or to purchase, nor any restriction upon the voting or transfer of,
any Shares pursuant to the Company's charter or by-laws or any
agreement or other instrument known to such counsel;
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(v) No consent, approval, authorization or order of any
court or governmental agency or body is required for the
consummation of the transactions contemplated in this Agreement or
the compliance by the Company with the provisions of the Deposit
Agreement, except for 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
Shares and the Depositary Shares by the Underwriters.
(vi) 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.
(vii) To the best of such counsel's knowledge, neither the
Company nor any 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.
(viii) This Agreement and the Deposit Agreement have been duly
authorized, executed and delivered by the Company; the execution,
delivery and performance of this Agreement and the Deposit Agreement
by the Company will not constitute a breach of, or 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 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 any of its Named Subsidiaries is
a party of is bound, or result in a violation of the corporate
charter or by-laws of the Company or any 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, any of
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.
(ix) Assuming due authorization, execution and delivery by
the Depositary, the Deposit Agreement constitutes a valid and
binding agreement, enforceable in accordance with its terms subject
to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws
13
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.
(x) The Registrations Statement has become effective under
the Securities Act, and, to the best of 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.
(xi) 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 included or incorporated by reference therein)
comply as to form in all material respects with the requirements of
the Securities Act and the Rules.
(xii) If the Shares or the Depositary Shares, as the case may
be, 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 Shares or the Depositary Shares, as the case may be,
with the NYSE, and such counsel has no reason to believe that the
Shares or the Depositary Shares, as the case may be, will not be
authorized for listing, subject to official notice of issuance and
evidence of satisfactory distribution.
(xiii) 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.
14
(xiv) All the outstanding shares of capital stock of each 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 Company free and clear of any claims, liens,
encumbrances and security interests.
(xv) 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 the Deposit Agreement or is required to be
disclosed in the Final Prospectus which is not disclosed and
correctly summarized therein.
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 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 such counsel
deems proper, upon certificates or affidavits of officers of the Company and
public officials.
(e) The Representatives shall have received from Underwriters'
Counsel such opinion or opinions, dated the day of such Delivery Date, with
respect to the issuance and sale of the Shares and the Depositary Shares, the
Depositary Agreement, the Registration Statement, the Final Prospectus and
other related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters.
(f) You shall have received an opinion of _________, counsel for
the Depositary, dated the day of such Delivery Date, to the effect that:
15
(i) The Deposit Agreement has been duly authorized, executed and
delivered by the Depositary and is a valid and binding agreement of the
Depositary; and
(ii) The Depositary Receipts, when issued in accordance with the
provisions of the Deposit Agreement against the deposit of duly and
validly authorized and issued, fully paid and non-assessable Shares, will
be validly issued and will entitle the holders thereof to the rights
specified therein and in the Deposit Agreement.
(g) 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 day of each Delivery 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 Delivery Date with the same effect as if made on such
Delivery 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 Delivery 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.
(h) At each Delivery Date, a nationally recognized firm of
independent public accountants shall have furnished to the Representatives a
letter, dated the day of such Delivery Date, in form and substance
satisfactory to the Representatives, confirming that they are independent
auditors with respect to the Company within the meaning of the Securities Act
and stating in effect that:
16
(i) In their opinion, the 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 Lehman, 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 Lehman, 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 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 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,
17
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
Lehman determined pursuant to Commission Rule 15c3-1 and shown in
the most recent financial statement of Lehman 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 increase 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, (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 in 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.
18
(iv) 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.
(i) 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.
Prior to each Delivery 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 6 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 6 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 Delivery Date by
the Representatives. Notice of such cancellation shall be given to the
Company in writing, or by telegraph confirmed in writing.
7. 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 hereunder, including, without limiting the generality of the
foregoing, all costs, taxes and expenses incident to the issuance, sale and
delivery of the Shares 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 rating
of the Shares or the Depositary Shares by one or more
19
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 Shares or the Depositary
Shares 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 Shares or the Depositary Shares
on the NYSE, all fees of the Depositary, for all taxes in connection with the
deposit of the Shares with the Depositary and the issuance of the Depositary
Receipts as provided in Section 3 hereof and all costs and expenses of the
printing and distribution of all documents in connection with such offering.
Except as provided in this Section 7, 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 Shares provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied or because of any refusal,
inability or failure on the part of the Company 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 Shares.
8. 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
20
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 Depositary
Shares which is 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
Depositary Shares 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 5(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, and each person, if any, who controls the Company
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, 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 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 8 of notice of the commencement of any action,
21
such indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, 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 8. 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 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 8 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
22
which the Company 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 Shares purchased by such
Underwriter hereunder and (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(i) 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 8, 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 and each director of the Company 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).
9. DEFAULT BY AN UNDERWRITER. If, on either Delivery Date, any one
or more Underwriters shall fail to purchase and pay for all of the Shares
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 number of Firm Shares set forth opposite their names in Schedule II
hereto bear to the aggregate number of Firm Shares set opposite the names of
the remaining Underwriters) the Shares which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such Delivery Date; provided,
however, that in the event that the aggregate number of Shares which the
defaulting Underwriter or Underwriters agreed but failed to purchase on such
Delivery Date shall exceed 10% of the aggregate number of the Shares, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Shares, and if such
non-defaulting Underwriters do not purchase all the Shares, this Agreement
(or, with respect to the Second Delivery Date, the obligation of the
Underwriters to purchase, and of the Company to sell, the Option Shares) will
terminate without liability to any
23
non-defaulting Underwriters or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the particular Delivery 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 and any
non-defaulting Underwriter for damages occasioned by its default hereunder.
10. 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 the Firm Shares, 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 Shares shall have become effective or 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, (iv) 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 (v)
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 Shares.
11. REPRESENTATION AND INDEMNITIES TO SURVIVE DELIVERY. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers (as such officers) 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 any of its officers or directors or any
controlling person within the meaning of the Securities Act, and will survive
delivery of the payment for the Shares.
12. 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 Company will be mailed, delivered, telegraphed or telexed
and confirmed to it at 3 World Financial Center, New York, New York 10285,
Attention: Chief Financial Officer.
24
13. 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 8 hereof, the officers and directors and
controlling persons referred to in Section 8 hereof, and except as provided
in Section 8 hereof, no person other than the parties hereto and their
respective successors will have any right or obligation hereunder.
14. APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
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 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 annexed hereto.
25
SCHEDULE I
Date of Underwriting Agreement:
Registration Statement No. 333-
Representative and Address: ▇▇▇▇▇▇ Brothers Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Description of Shares:
Title:
Number of shares of Firm Shares: _________shares
Maximum number of shares of Option Shares: _________shares
Price per share: $
Time of payment of dividends:
Sinking fund provisions:
Redemption provisions:
Repayment provisions:
Other provisions:
Listing:
Depositary Shares Each Representing One - _________ of a Share of _________.
Price to Public:
First Delivery Date, Time and Location:
Date:
Time:
Location:
SCHEDULE II
NUMBER DEPOSITARY
OF FIRM SHARES IN
SHARES TO BE RESPECT OF SUCH
PURCHASED FIRM SHARES
------------ ---------------
UNDERWRITERS
▇▇▇▇▇▇ Brothers Inc.................................