FORM OF MORGAN STANLEY UNDERWRITING AGREEMENT (DEBT SECURITIES, WARRANTS, PURCHASE CONTRACTS AND UNITS)
EXHIBIT
1-a
FORM OF
▇▇▇▇▇▇
▇▇▇▇▇▇▇
(DEBT
SECURITIES, WARRANTS, PURCHASE CONTRACTS AND UNITS)
_____________,
20__
To the
Managers named in Schedule I hereto
for the
Underwriters named in Schedule II hereto
Ladies and
Gentlemen:
▇▇▇▇▇▇
▇▇▇▇▇▇▇, a Delaware corporation (the “Company”), proposes to issue
and sell to the several underwriters named in Schedule II hereto (the “Underwriters”), for whom you
are acting as managers (the “Managers”), the principal
amount of its debt securities identified in Schedule I hereto (the “Securities”), to be issued
under the indenture specified in Schedule I hereto (the “Indenture”) between the
Company and the Trustee identified in such Schedule (the “Trustee”). If the firm or
firms listed in Schedule II hereto include only the Managers listed in Schedule
I hereto, then the terms “Underwriters” and “Managers” as used herein shall each
be deemed to refer to such firm or firms.1
The
Company has filed with the Securities and Exchange Commission (the “Commission”) a registration
statement including a prospectus (the file number of which is set forth in
Schedule I hereto) on Form S-3, relating to (a) its debt securities (“Debt Securities”),23 (b)
warrants to purchase or sell (i) securities issued by the Company or by an
entity affiliated or not affiliated with the Company, a basket of such
securities, an index or indices of such securities or any other property, (ii)
currencies, (iii) commodities, (iv) any other property or (v) any combination of
the foregoing (collectively, the “Warrants”) and (c)
purchase
1
This Underwriting Agreement
will be modified, as required, for other Shelf Securities registered by the Registration
Statement.
2
This term includes Debt
Securities convertible into the Company’s common stock, par value $0.01 per share (the “Convertible Debt
Securities”). Common stock
issuable upon conversion are hereafter referred to as the “Underlying
Securities.” Specific
additional provisions relating to Convertible Debt Securities will be referenced
in footnotes.
3
This term includes Debt
Securities guaranteed under the Federal Deposit Insurance Corporation Temporary Liquidity
Guarantee Program (such Debt Securities, the “FDIC Guaranteed
Securities”). Specific
additional provisions relating to FDIC Guaranteed Securities will be identified by
footnotes.
contracts
(“Purchase Contracts”)
requiring the holders thereof to purchase or sell (i) securities issued by the
Company or by an entity affiliated or not affiliated with the Company, a basket
of such securities, an index or indices of such securities or any other
property, (ii) currencies, (iii) commodities, (iv) any other property or (v) any
combination of the foregoing. Any combination of Debt Securities, Purchase
Contracts, Warrants, shares of the Company’s preferred stock (“Preferred Stock”), shares of
the Company’s common stock, par value $.01 per share (“Common Stock”), debt
obligations or other securities issued by an entity affiliated or not affiliated
with the Company and any other property may be offered in the form of Units
(“Units” and,
collectively, the “Shelf
Securities”), including the Securities, to be issued from time to time by
the Company. As used herein, the term “Debt Securities” includes
prepaid Purchase Contracts issued under an indenture. The registration statement
as amended to the date of this Agreement, including the information (if any)
deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430A or Rule 430B under the Securities Act of 1933, as amended
(the “Securities Act”),
is hereinafter referred to as the “Registration Statement,” and
the related prospectus covering the Shelf Securities dated ,
200● in the
form first used to confirm sales of the Securities (or in the form first made
available to the Underwriters by the Company to meet requests of purchasers
pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the
“Basic Prospectus.” The
Basic Prospectus, as supplemented by the prospectus supplement specifically
relating to the Securities in the form first used to confirm sales of the
Securities (or in the form first made available to the Underwriters by the
Company to meet requests of purchasers pursuant to Rule 173 under the Securities
Act) is hereinafter referred to as the “ Prospectus,” and the term
“preliminary prospectus” means any
preliminary form of the Prospectus. For purposes of this Agreement, “free writing prospectus” has
the meaning set forth in Rule 405 under the Securities Act, “Time of Sale Prospectus” means
the [Basic Prospectus] [the preliminary prospectus] together with the free
writing prospectuses, if any, each identified in Schedule I hereto, and “broadly available road show” means a “bona fide electronic road
show” as defined in Rule 433(h)(5) under the
Securities Act that has been made available without restriction to any person.
As used herein, the terms “Registration Statement,” “Basic Prospectus,”
“preliminary prospectus,” “Time of Sale Prospectus” and “Prospectus” shall
include the documents, if any, incorporated by reference therein. The terms
“supplement,” “amendment” and “amend” as used herein with
respect to the Registration Statement, the Basic Prospectus, the Time of Sale
Prospectus, any preliminary prospectus or free writing prospectus shall include
all documents subsequently filed by the Company with the Commission pursuant to
the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are
deemed to be incorporated by reference therein.
The term
“Contract Securities”
means the Securities, if any, to be purchased pursuant to the delayed delivery
contracts substantially in the form of Schedule III hereto, with such changes
therein as the Company may approve (the
2
“Delayed Delivery Contracts”).
The term “Underwriters’
Securities” means the Securities other than Contract
Securities.
1. Representations and
Warranties. The Company represents and warrants to and agrees with each
of the Underwriters that:
(a) The
Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings for
such purpose are pending before or threatened by the Commission. If the
Registration Statement is an automatic shelf registration statement as defined
in Rule 405 under the Securities Act, the Company is a well- known seasoned
issuer (as defined in Rule 405 under the Securities Act) eligible to use the
Registration Statement as an automatic shelf registration statement and the
Company has not received notice that the Commission objects to the use of the
Registration Statement as an automatic shelf registration
statement.
(b) (i)
Each document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Time of Sale Prospectus or the Prospectus
complied or will comply when so filed in all material respects with the Exchange
Act and the applicable rules and regulations of the Commission thereunder, (ii)
each part of the Registration Statement, when such part became effective, did
not contain and each such part, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (iii) the Registration Statement as of the date hereof does not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (iv) the Registration Statement and the Prospectus comply, and as
amended or supplemented, if applicable, will comply in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder, (v) the Time of Sale Prospectus does not, and at the time
of each sale of the Securities in connection with the offering when the
Prospectus is not yet available to prospective purchasers and at the Closing
Date (as defined in Section 5), the Time of Sale Prospectus, as then amended or
supplemented by the Company, if applicable, will not, contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, (vi) each broadly available road show, if any, when
considered together with the Time of Sale Prospectus, does not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading and (vii) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and
3
warranties
set forth in this paragraph do not apply to (A) statements or omissions in the
Registration Statement, the Time of Sale Prospectus or the Prospectus based upon
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Managers expressly for use therein or (B) those
parts of the Registration Statement that constitute the Statements of
Eligibility (Forms T-1) under the Trust Indenture Act of 1939, as amended (the
“Trust Indenture Act”),
of the trustees referred to in the Registration Statement.
(c) The
Company is not an “ineligible issuer” in connection with the offering pursuant
to Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus
that the Company is required to file pursuant to Rule 433(d) under the
Securities Act has been, or will be, filed with the Commission in accordance
with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Each free writing prospectus that the
Company has filed, or is required to file, pursuant to Rule 433(d) under the
Securities Act or that was prepared by or on behalf of or used or referred to by
the Company complies or will comply in all material respects with the
requirements of the Securities Act and the applicable rules and regulations of
the Commission thereunder. Except for the free writing prospectuses, if any,
identified in Schedule I hereto, and electronic road shows, if any, each
furnished to you before first use, the Company has not prepared, used or
referred to, and will not, without your prior consent, prepare, use or refer to,
any free writing prospectus.
(d) The
Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the State of Delaware, has the corporate power and
authority to own its property and to conduct its business as described in the
Time of Sale Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its consolidated subsidiaries,
taken as a whole.
(e) Each
subsidiary of the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Time of Sale Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its consolidated subsidiaries, taken as a whole; all of the issued
shares of capital stock of each consolidated subsidiary of the Company have been
duly and validly authorized and issued, are fully paid and non-assessable and
are owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
4
(f) This
Agreement has been duly authorized, executed and delivered by the
Company.
(g) The
Delayed Delivery Contracts, if any, have been duly authorized and, when executed
and delivered by the Company, will be valid and binding agreements of the
Company, enforceable in accordance with their respective terms, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors’ rights
generally and equitable principles of general applicability.
(h) The
Indenture has been duly qualified under the Trust Indenture Act, has been duly
authorized, executed and delivered by, and is a valid and binding agreement of,
the Company, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights generally
and equitable principles of general applicability.
[(_)
The warrant agreement for Warrants (the “Warrant Agreement”) has been
duly authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally and equitable principles of general
applicability.]4
[(_) The
unit agreement for Units (the “Unit Agreement”), if any, has
been duly authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally and equitable principles of general
applicability.]5
(i) The
Securities have been duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture[, the Warrant Agreement or the
Unit Agreement, as the case may be,] and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, in the case of the
Underwriters’ Securities, or by institutional investors in accordance with the
terms of the Delayed Delivery Contracts, in the case of the Contract Securities,
will be valid and binding obligations of the Company, in each case enforceable
in accordance with their respective terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors’ rights generally and equitable
principles of general applicability, and will be entitled to the benefits of the
Indenture. 6
4
To replace or supplement
Section 1(h) if Warrants are offered. See also bracketed language below.
5
To supplement Section 1(h),
if Units are offered. See also bracketed language
below.
6
For issuances of
Convertible Debt Securities, add additional representations and warranties by the Company to the
Underwriting Agreement including, but not limited to: (i) the shares of Common
Stock outstanding prior to the issuance of the Securities have been duly
(…continued)
5
(j) The
execution and delivery by the Company of, and the performance by the Company of
its obligations under, this Agreement, the Indenture, the Securities and the
Delayed Delivery Contracts, if any, [any certificate of designation relating to
Preferred Stock filed in connection with the sale of Securities (the “Certificate of Designation”), the Warrant
Agreement and the Unit Agreement,] [and the Master Agreement under the Federal
Deposit Insurance Corporation (“FDIC”)
Temporary Liquidity Guarantee Program (the “FDIC
Program”), duly executed by the Company and delivered to the FDIC on
November 26, 2008 (the “Master
Agreement”),]7
will not contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or any agreement or other instrument
binding upon the Company or any of its subsidiaries that is material to the
Company and its consolidated subsidiaries, taken as a whole, or any judgment,
order or decree of any governmental body, agency or court having jurisdiction
over the Company or any of its consolidated subsidiaries, and no consent,
approval, authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of its obligations
under this Agreement, the Indenture, the Securities or the Delayed Delivery
Contracts, if any, [the Certificate of Designation, if any, the Warrant
Agreement and the Unit Agreement,] [or the Master Agreement,] except such as may
be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Securities; provided, however, that no representation is made as
to
(continued…)
authorized
and are validly issued, fully paid and non-assessable; (ii) the Underlying
Securities have been duly authorized and reserved, and, when issued upon
conversion of the Convertible Debt Securities in accordance with the terms of
the Convertible Debt Securities, will be validly issued, fully paid and
non-assessable, and the issuance of the Underlying Securities will not be
subject to any preemptive or similar rights; and (iii) there are no persons with
registration or other similar rights granted by the Company to require that any
of the Company’s equity or debt securities be registered for sale under the
Registration Statement or included in the offering, except for such rights as
have been duly waived. For issuances of Units that include Common Stock or
Preferred Stock of the Company, add additional representations and warranties by
the Company to the Underwriting Agreement including, but not limited to: (i) the
shares of [Common Stock/Preferred Stock] issued as part of the Unit have been
duly authorized by the Company and, when such shares are issued and delivered as
contemplated by the terms of this Agreement, such shares will be validly issued,
fully paid and non-assessable, and the issuance of such shares is not subject to
any preemptive or similar rights, (ii) the Common Stock outstanding prior to the
issuance of the Units have been duly authorized by the Company and is validly
issued, fully paid and non-assessable and (iii) there are no persons with
registration or other similar rights granted by the Company to require any of
the Company’s equity or debt securities to be registered for sale under the
Registration Statement or included in the offering, except for such rights as
have been duly waived.
Analogous
provisions will be added for Warrants exercisable for, or Purchase Contracts
settled by delivery of, Common Stock.
7
To supplement Section 1(j)
if FDIC Guaranteed Securities are offered. See also bracketed language
below.
6
whether
the purchase of the Securities constitutes a “prohibited transaction” under
Section 406 of the Employee Retirement Income Security Act of 1974, as amended,
or Section 4975 of the Internal Revenue Code of 1986, as amended.
(k) There
has not occurred any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its subsidiaries,
taken as a whole, from that set forth in the Time of Sale
Prospectus.
(l)
There are no legal or governmental proceedings pending or threatened to which
the Company or any of its consolidated subsidiaries is a party or to which any
of the properties of the Company or any of its consolidated subsidiaries is
subject (i) other than proceedings accurately described in all material respects
in the Time of Sale Prospectus and proceedings that would not have a material
adverse effect on the Company and its consolidated subsidiaries, taken as a
whole, or on the power or ability of the Company to perform its obligations
under this Agreement, the Indenture or the Securities [or the Master
Agreement]8 or to
consummate the transactions contemplated by the Time of Sale Prospectus or (ii)
that are required to be described in the Registration Statement or the
Prospectus and are not so described and there are no statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed or incorporated by
reference as exhibits to the Registration Statement that are not described,
filed or incorporated as required.
(m) Each
preliminary prospectus filed as part of the registration statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424 under
the Securities Act, complied when so filed in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder.
(n) The
Company is not, and after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the
Prospectus will not be, required to register as an “investment company” as such
term is defined in the Investment Company Act of 1940, as amended.
(o) Each
of the Company and its consolidated subsidiaries has all necessary consents,
authorizations, approvals, orders, certificates and permits of and from, and has
made all declarations and filings with, all federal, state, local and other
governmental authorities, all self-regulatory organizations and all courts and
other tribunals, to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Time of Sale
Prospectus,
8 To supplement Section 1(l) if FDIC
Guaranteed Securities are offered.
7
except to
the extent that the failure to obtain or file would not have a material adverse
effect on the Company and its consolidated subsidiaries, taken as a
whole.
(p) ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated is registered as a broker-dealer and investment
adviser with the Commission, is registered with the Commodity Futures Trading
Commission as a futures commission merchant and is a member of the New York
Stock Exchange, Inc. and the Financial Industry Regulatory Authority,
Inc.
[(q) The
Company is, and through the Closing Date (as defined below) it will be, an
eligible entity as defined in Section 370.2(a) of the FDIC Program Final Rule
(12 C.F.R. Part 370) announced on November 21, 2008 (the “TLGP Rule”) because it is a U.S. bank holding
company that controls, directly or indirectly, at least one subsidiary that is a
chartered and operating insured depositary institution.
(r) The
Company has not opted out and will not opt out of the FDIC Program and the
Company will cause each affiliate of the Company that is also an eligible entity
(as defined in Section 370.2(a) of the TLGP Rule), including ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Bank, N.A., to not opt out of the FDIC Program.
(s) The
Company has duly authorized, executed and delivered the Master Agreement and the
Master Agreement is a valid and binding agreement of the Company, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors’ rights generally and equitable principles of
general applicability.
(t) The
Company has duly authorized, executed and delivered a supplemental indenture
(the “Supplemental
Indenture”) in order to add the provisions to the Indenture and the
Securities that are required to be so added pursuant to the TLGP Rule and the
Supplemental Indenture is a valid and binding agreement of the Company,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors’ rights generally and equitable
principles of general applicability.
(u) The
FDIC has not terminated the Company’s participation in the FDIC
Program.
(v) The
Securities constitute “FDIC-guaranteed debt,” as defined in Section 370.2(i) of
the TLGP Rule.
(w) Taking
into account the aggregate principal amount of Securities to be issued hereby,
the Company has not issued, and by the Closing Date the Company will not have
issued, an aggregate principal amount of debt benefiting from the FDIC’s debt
guarantee program, as defined in Section 370.2(j) of the TLGP Rule, in excess of
125% of the par value of the Company’s senior unsecured debt, as defined in
Section 370.2(e)(1)(i) of the TLGP Rule, that was
8
outstanding
as of the close of business on September 30, 2008 that was scheduled to mature
on or before June 30, 2009 (the “Cap Amount”), as set forth in
Section 370.3(b) of the TLGP Rule.]9
2. Agreements to Sell and
Purchase. The Company hereby agrees to sell to the several Underwriters,
and each Underwriter, upon the basis of the representations and warranties
herein contained, but subject to the conditions hereinafter stated, agrees,
severally and not jointly, to purchase from the Company the respective principal
amounts of Securities set forth in Schedule II hereto opposite its name at the
purchase price set forth in Schedule I hereto.10
3. Delayed Delivery
Contracts. If the Prospectus provides for sales of Securities pursuant to
Delayed Delivery Contracts, the Company hereby authorizes the Underwriters to
solicit offers to purchase Contract Securities on the terms and subject to the
conditions set forth in the Prospectus pursuant to Delayed Delivery Contracts.
Delayed Delivery Contracts may be entered into only with institutional investors
approved by the Company of the types set forth in the Prospectus. On the Closing
Date, the Company will pay to you as compensation for the accounts of the
Underwriters the commission set forth in Schedule I hereto in respect of the
Contract Securities. The Underwriters will not have any responsibility in
respect of the validity or the performance of any Delayed Delivery
Contracts.
If the
Company executes and delivers Delayed Delivery Contracts with institutional
investors, the aggregate principal amount of Securities to be purchased by the
several Underwriters shall be reduced by the aggregate principal amount of
Contract Securities; and such reduction shall be applied to the commitment of
each Underwriter pro
rata in proportion to the principal amount of Securities set forth
opposite such Underwriter’s name in the Schedule II hereto, except to the extent
that you determine that such reduction shall be applied in other proportions and
so advise the Company; provided that the total
principal amount of Securities to be purchased by all Underwriters shall be the
aggregate principal amount set forth above, less the aggregate principal amount
of Contract Securities. The Company will advise you not later than the business
day prior to the Closing Date of the aggregate principal amount of Contract
Securities.
4. Public Offering. The
Company is advised by you that the Underwriters propose to make a public
offering of their respective portions of the Securities as soon after this
Agreement has become effective as in your judgment is advisable. The Company is
further advised by you that the Securities are to be offered to the public upon
the terms set forth in the Prospectus.
9
To supplement Section 1 if
FDIC Guaranteed Securities are offered.
10
For issuance of Convertible
Debt Securities or certain other structured Securities, a green shoe provision may be
added.
9
5. Payment and Delivery.
Payment for the Underwriters’ Securities shall be made to the Company in Federal
or other funds immediately available in New York City at the closing time and
place set forth in Schedule I hereto, or at such other time on the same or such
other date, not later than the fifth business day thereafter, as may be
designated by you in writing. The time and date of such payment are hereinafter
referred to as the “Closing
Date.”
Payment
for the Underwriters’ Securities shall be made against delivery to you on the
Closing Date for the respective accounts of the several Underwriters of the
Underwriters’ Securities registered in such names and in such denominations as
you shall request in writing not later than one full business day prior to the
Closing Date, with any transfer taxes payable in connection with the transfer of
the Underwriters’ Securities to the Underwriters duly paid.
Delivery
on the Closing Date of any Underwriters’ Securities [(i)] that are Debt
Securities in bearer form [or are Units that contain Debt Securities in bearer
form] shall be effected by delivery of a single temporary global Security
without coupons (the “Temporary
Global Security”) evidencing the Securities that are or include Debt
Securities in bearer form [and (ii) that are Warrants in bearer form or are
Units that (a) contain Warrants in bearer form and (b) contain no other Debt
Securities in bearer form shall be effected only by delivery of a single
permanent global Warrant (the “Global Warrant”) evidencing
the Offered Securities that are or include Warrants in bearer form, 11 in each
case] to a common depositary for Euroclear Bank, S.A./N.V. (“Euroclear”), and for
Clearstream Banking, société
anonyme, Luxembourg (“Clearstream”), for credit to
the respective accounts at Euroclear
or Clearstream of each Underwriter or to such other accounts as such Underwriter
may direct. Any Temporary Global Security [or Global Warrant] shall be delivered
to the Manager not later than the Closing Date, against payment of funds to the
Company in the net amount due to the Company for such Temporary Global Security
[or Global Warrant, as the case may be,] by the method and in the form set forth
herein. The Company shall cause global and, if applicable, definitive Debt
Securities in bearer form to be prepared and delivered in exchange for such
Temporary Global Security in such manner and at such time as may be provided in
or pursuant to the Indenture; provided, however, that the Temporary
Global Security shall be exchangeable for other Debt Securities in bearer form
only on or after the date specified for such purpose in the Prospectus.
[Warrants in bearer form shall be evidenced only by a Global Warrant until their
expiration.]
11
Upon issuance of Warrants
in bearer form or Units that contain any such Warrants, the form of any security issuable upon
exercise of any Warrant will be modified, as necessary, consistent with this
paragraph.
10
6. Conditions
to the Underwriters’ Obligations. The several obligations of the
Underwriters are subject to the following conditions:12
(a) Subsequent
to the execution and delivery of this Agreement and prior to the Closing
Date
(i) there
shall not have occurred any downgrading, nor shall any notice have been given of
any intended or potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in the rating
accorded the Company or any of the securities of the Company by any “nationally
recognized statistical rating organization,” as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there
shall not have occurred any change, or any development involving a prospective
change, in the condition, financial or otherwise, or in the earnings, business
or operations of the Company and its consolidated subsidiaries, taken as a
whole, from that set forth in the Time of Sale Prospectus as of the date of this
Agreement that, in your judgment, is material and adverse and that makes it, in
your judgment, impracticable to market the Securities on the terms and in the
manner contemplated in the Time of Sale Prospectus.
(b) The
Underwriters shall have received on the Closing Date a certificate, dated the
Closing Date and signed by an executive officer of the Company, to the effect
set forth in Section 6(a)(i) above and to the effect that the representations
and warranties of the Company contained in this Agreement are true and correct
as of the Closing Date and that the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be performed or
satisfied hereunder on or before the Closing Date.
The
officer signing and delivering such certificate may rely upon the best of his or
her knowledge as to proceedings threatened.
(c) The
Underwriters shall have received on the Closing Date an opinion of ▇▇▇▇▇ ▇▇▇▇
& ▇▇▇▇▇▇▇▇, outside counsel to the Company, or of other counsel satisfactory
to you and who may be an officer of the Company, dated the Closing Date, to the
effect that:
12
For issuances of
Convertible Debt Securities or Units that include Common Stock, include condition that “lock-up”
agreements, substantially in the form of Exhibit A hereto, between the Managers
and certain executive officers and directors of the Company relating to sales
and certain disposition of shares of Common Stock or certain other securities,
shall be delivered to the Managers on or before the first date of the public
offering of the Securities (the “Pricing
Date”), and shall be in
full force and effect on the Closing Date. A Company “lock-up” provision should
be included in the Underwriting Agreement. In addition, a green shoe provision
may be included for issuances of Convertible Debt Securities or certain other
equity-linked Securities.
11
(i) the
Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the State of Delaware, has the corporate power and
authority to own its property and to conduct its business as described in the
Time of Sale Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its consolidated subsidiaries,
taken as a whole;
(ii) each
of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ International
Holdings Inc. (the “Material
Subsidiaries”) has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Time of Sale Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its consolidated subsidiaries, taken as a whole;
(iii) each
of the Company and its Material Subsidiaries has all necessary consents,
authorizations, approvals, orders, certificates and permits of and from, and has
made all declarations and filings with, all federal, state, local and other
governmental authorities, all self-regulatory organizations and all courts and
other tribunals, to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Time of Sale Prospectus,
except to the extent that the failure to obtain or file would not have a
material adverse effect on the Company and its consolidated subsidiaries, taken
as a whole;
(iv) the
Delayed Delivery Contracts, if any, have been duly authorized, executed and
delivered by, and are valid and binding agreements of, the Company, enforceable
in accordance with their respective terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors’ rights generally, concepts of
reasonableness and equitable principles of general applicability;
(v) the
Indenture has been duly qualified under the Trust Indenture Act and has been
duly authorized, executed and delivered by, and is a valid and binding agreement
of, the Company, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights generally,
concepts of reasonableness and equitable principles of general
applicability;
12
[(_) the
Warrant Agreement has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors’ rights generally, concepts of reasonableness
and equitable principles of general applicability;]13
[(_) the
Unit Agreement has been duly authorized, executed and delivered by the Company
and is a valid and binding agreement of the Company, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors’ rights generally, concepts of reasonableness and equitable
principles of general applicability;]14
(vi) the
Securities have been duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture[, the Warrant Agreement and the
Unit Agreement, as the case may be,] and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, in the case of the
Underwriters’ Securities, or by institutional investors in accordance with the
terms of the Delayed Delivery Contracts, in the case of the Contract Securities
and will be entitled to the benefits of the Indenture[, the Warrant Agreement
and the Unit Agreement, as the case may be,] and will be valid and binding
obligations of the Company, in each case enforceable in accordance with their
respective terms, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors’ rights generally, concepts of reasonableness and equitable
principles of general applicability;15
(vii) this
Agreement has been duly authorized, executed and delivered by the
Company;
13 To replace or supplement Section
6(c)(v), if Warrants are offered.
14 To supplement Section 6(c)(v), if Units
are offered.
15 For issuance of Convertible Debt
Securities, the Underwriting Agreement will provide that the Managers shall also
receive opinions delivered pursuant to Sections 5(c) and 5(d), as appropriate,
to the effect that the Underlying Securities have been duly authorized and
reserved, and, when issued upon conversion of the Convertible Debt Securities in
accordance with the terms of the Convertible Debt Securities, will be validly
issued, fully paid and non-assessable, and the issuance of the Underlying
Securities will not be subject to any preemptive or similar rights. For
issuances of Units that include Common Stock or Preferred Stock of the Company,
the Underwriting Agreement will provide that the Managers also receive opinions
delivered pursuant to Sections 5(c) and 5(d), as appropriate, to the effect that
the [Common Stock/Preferred Stock] issued as part of the Unit have been duly
authorized by the Company and, when such shares are issued and delivered as
contemplated by the terms of the Underwriting Agreement, such shares will be
validly issued, fully paid and non-assessable, and the issuance of such shares
is not subject to any preemptive or similar rights.
13
(viii) the
execution and delivery by the Company of, and the performance by the Company of
its obligations under, this Agreement, the Indenture, the Securities and the
Delayed Delivery Contracts, if any, [the Certificate of Designation, if any, the
Warrant Agreement and the Unit Agreement,] [and the Master Agreement,]16 will
not contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or, to the best of such counsel’s
knowledge, any agreement or other instrument binding upon the Company or any of
its subsidiaries that is material to the Company and its consolidated
subsidiaries, taken as a whole, or, to the best of such counsel’s knowledge, any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company or any of its consolidated subsidiaries, and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company of
its obligations under this Agreement, the Indenture, the Securities or the
Delayed Delivery Contracts, if any, [ the Certificate of Designation, if any,
the Warrant Agreement and the Unit Agreement,] [or the Master Agreement,] except
such as may be required by the securities or Blue Sky laws of the various states
in connection with the offer and sale of the Securities; provided, however, that such counsel
need not express an opinion as to whether the purchase of the Securities
constitutes a “prohibited transaction” under Section 406 of the Employee
Retirement Income Security Act of 1974, as amended, or Section 4975 of the
Internal Revenue Code of 1986, as amended;
(ix) the
statements relating to legal matters, documents or proceedings included in (A)
the Time of Sale Prospectus and the Prospectus under the captions “Description
of Debt Securities”[, “Description of Warrants,” “Description of Purchase
Contracts,” “Description of Units” and “Description of Capital Stock”] and “Plan
of Distribution,” (B) the Registration Statement in Item 15, (C) “Item 3. Legal
Proceedings” of the most recent annual report on Form 10-K incorporated by
reference in the Time of Sale Prospectus and the Prospectus and (D) “Item 1.
Legal Proceedings” of Part II of the quarterly reports on Form 10-Q, if any,
filed since such annual report and incorporated by reference in the Time of Sale
Prospectus and the Prospectus, in each case fairly summarize in all material
respects such matters, documents or proceedings;
(x) after
due inquiry, such counsel does not know of any legal or governmental proceedings
pending or threatened to which the Company or any of its consolidated
subsidiaries is a party or to which any of the properties of the Company or any
of its consolidated subsidiaries is
16 To supplement Section 6(c)(viii) if FDIC
Guaranteed Securities are offered. See also bracketed language
below.
14
subject
that are required to be described in the Registration Statement or the
Prospectus and are not so described or of any statutes, regulations, contracts
or other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed or incorporated by reference as
exhibits to the Registration Statement that are not described, filed or
incorporated by reference as required;
(xi) the
Company is not, and after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the
Prospectus will not be, required to register as, an “investment company” as such
term is defined in the Investment Company Act of 1940, as amended;
(xii) such
counsel is of the opinion ascribed to it in the Prospectus under the caption
“United States Federal Taxation”;
(xiii) (A) in the opinion of such counsel
(1) each document filed pursuant to the Exchange Act and incorporated by
reference in the Registration Statement and the Prospectus (except for the
financial statements and financial schedules and other financial and statistical
data included therein, as to which such counsel need not express any opinion)
appeared on its face to be appropriately responsive as of its filing date in all
material respects to the requirements of the Exchange Act and the applicable
rules and regulations of the Commission thereunder and (2) the Registration
Statement and the Prospectus (except for the financial statements and financial
schedules and other financial and statistical data included therein and except
for those parts of the Registration Statement that constitute the Forms T-1, as
to which such counsel need not express any opinion) appear on their face to be
appropriately responsive in all material respects to the requirements of the
Securities Act and the applicable rules and regulations of the Commission
thereunder, and (B) nothing has come to the attention of such counsel that
causes such counsel to believe that (1) any part of the Registration Statement,
when such part became effective (except for the financial statements and
financial schedules and other financial and statistical data included therein
and except for those parts of the Registration Statement that constitute Forms
T-1, as to which such counsel need not express any belief) contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, (2)
the Registration Statement or the Prospectus (except for the financial
statements and financial schedules and other financial and statistical data
included therein and except for those parts of the Registration Statement that
constitute Forms T-1, as to which such counsel need not express any belief) on
the date of this Agreement, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (3) the Time of Sale Prospectus
(except for the financial
15
statements
and financial schedules and other financial and statistical data included
therein, as to which such counsel need not express any belief), as of the date
of this Agreement or as amended or supplemented, if applicable, as of the
Closing Date contained or contains any untrue statement of a material fact or
omitted or omits 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 or (4) the Prospectus (except for the financial statements and
financial schedules and other financial and statistical data included therein,
as to which such counsel need not express any belief), as amended or
supplemented, if applicable, as of the Closing Date contains any untrue
statement of a material fact or omits 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;
[(xiv) The Company is a “participating entity,” as such term
is defined in Section 370.2(g) of the TLGP Rule;
(xv) The
Securities constitute “FDIC-guaranteed debt,” as defined in Section 370.2(i) of
the TLGP Rule;
(xvi) The
Master Agreement has been duly authorized, executed and delivered by, and is a
valid and binding agreement of, the Company, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally, concepts of reasonableness and equitable principles
of general applicability; and
(xvii) The
Supplemental Indenture has been duly authorized, executed and delivered by, and
is a valid and binding agreement of, the Company, enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors’ rights generally, concepts of reasonableness and equitable
principles of general applicability.]17
(d)
The Underwriters shall have received on the Closing Date an opinion of
Sidley Austin LLP, counsel
for the Underwriters, dated the Closing Date, covering the matters referred to
in Sections 6(c)(iv), 6(c)(v), 6(c)(vi), 6(c)(vii) and 6(c)(ix) (but only as to
the statements in each of the Prospectus and the Time of Sale Prospectus under
“Description of Debt Securities” [“Description of Warrants,” “Description of
Purchase Contracts,” “Description of Units” and “Description of Capital Stock”]
and “Plan of Distribution”), and Sections 6(c)(xiii)(A)(2), 6(c)(xiii)(B)(2),
6(c)(xiii)(B)(3) and 6(c)(xiii)(B)(4) above.
17
To supplement Section 6(c)
if FDIC Guaranteed Securities are offered.
16
With
respect to Section 6(c)(xiii) above, if such opinion is given by counsel who is
also an officer of the Company, such counsel may state that his or her opinion
and beliefs are based upon his or her participation, or the participation of
someone under his or her supervision, in the preparation of the Registration
Statement, the Time of Sale Prospectus and the Prospectus and any amendments or
supplements thereto and review and discussion of the contents thereof, but are
without independent check or verification, except as specified. With respect to
Section 6(c)(xiii) above, Sidley Austin LLP and, if ▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇ is giving such opinion, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ may state that their
opinions and beliefs are based upon their participation in the preparation of
[the Registration Statement,] [the Time of Sale Prospectus,] [the Prospectus,]
[the preliminary prospectus supplement,] [the free writing prospectuses
identified as part of the Time of Sale Prospectus in Schedule I hereto,] [the
prospectus supplement] and any amendments or supplements thereto (other than the
documents incorporated by reference) and upon review and discussion of the
contents of the Registration Statement, the Time of Sale Prospectus and the
Prospectus (including documents incorporated by reference), but are without
independent check or verification, except as specified.
The
opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, or any other outside counsel for the
Company, described in Section 6(c) above shall be rendered to the Underwriters
at the request of the Company and shall so state therein.
(e) The
Underwriters shall have received on the Closing Date18 a
letter, dated the Closing Date, in form and substance satisfactory to the
Managers, from the Company’s independent public accountants, containing
statements and information of the type ordinarily included in accountants’
“comfort letters” to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by reference into the
Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that each letter so
furnished shall use a “cut-off date” no more than three business days prior to
the date of such letter.
7. Covenants of the
Company. The Company covenants with each Underwriter as
follows:
(a)
To furnish to you without charge, a signed copy of the Registration Statement
(including exhibits thereto and documents incorporated by reference therein) and
to deliver to each of the Underwriters during the period mentioned in Section
7(e) or 7(f) below, as many copies of the Time of Sale Prospectus, the
Prospectus, any documents incorporated by reference therein and any
18
For issuance of Convertible
Debt Securities or Units that include Common Stock or Preferred Stock, the Manger shall
receive on the date of the Underwriting Agreement, in addition to the Closing
Date, a “comfort letter” from the Company’s independent
auditors.
17
supplements
and amendments thereto or to the Registration Statement as you may reasonably
request.
(b) Before
amending or supplementing the Registration Statement, the Time of Sale
Prospectus or the Prospectus, to furnish to you a copy of each such proposed
amendment or supplement and not to file any such proposed amendment or
supplement to which you reasonably object.
(c) To
furnish to you a copy of each proposed free writing prospectus to be prepared by
or on behalf of, used by, or referred to by the Company and not to use or refer
to any proposed free writing prospectus to which you reasonably object.19
(d) Not
to take any action that would result in an Underwriter or the Company being
required to file with the Commission pursuant to Rule 433(d) under the
Securities Act a free writing prospectus prepared by or on behalf of the
Underwriter that the Underwriter otherwise would not have been required to file
thereunder.
(e) If
the Time of Sale Prospectus is being used to solicit offers to buy the
Securities at a time when the Prospectus is not yet available to prospective
purchasers and any event shall occur or condition exist as a result of which it
is necessary to amend or supplement the Time of Sale Prospectus in order to make
the statements therein, in the light of the circumstances, not misleading, or if
any event shall occur or condition exist as a result of which the Time of Sale
Prospectus conflicts with the information contained in the Registration
Statement then on file, or if, in the opinion of counsel for the Underwriters,
it is necessary to amend or supplement the Time of Sale Prospectus to comply
with applicable law, forthwith to prepare, file with the Commission and furnish,
at the Company’s own expense, to the Underwriters and to any dealer upon
request, either amendments or supplements to the Time of Sale Prospectus so that
the statements in the Time of Sale Prospectus as so amended or supplemented will
not, in the light of the circumstances when the Time of Sale Prospectus is
delivered to a prospective purchaser, be misleading or so that the Time of Sale
Prospectus, as amended or supplemented, will no longer conflict with the
Registration Statement, or so that the Time of Sale Prospectus, as amended or
supplemented, will comply with applicable law.
(f) If,
during such period after the first date of the public offering of the Securities
as in the opinion of counsel for the Underwriters the Prospectus (or in lieu
thereof the notice referred to in Rule 173(a) under the Securities Act) is
required by law to be delivered in connection with sales by an Underwriter or
dealer, any event shall occur or condition exist as a result of which it is
necessary
19
Note this covers all free
writing prospectuses including electronic road shows.
18
to amend
or supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus (or in lieu thereof the notice
referred to in Rule 173(a) under the Securities Act) is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to comply
with applicable law, forthwith to prepare, file with the Commission and furnish,
at the Company’s own expense, to the Underwriters and to the dealers (whose
names and addresses you will furnish to the Company) to which Securities may
have been sold by you on behalf of the Underwriters and to any other dealers
upon request, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus (or in lieu thereof the notice
referred to in Rule 173(a) under the Securities Act) is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or supplemented,
will comply with applicable law.
(g) To
endeavor to qualify the Securities for offer and sale under the securities or
Blue Sky laws of such jurisdictions as you shall reasonably
request.
(h) To
make generally available to the Company’s security holders and to you as soon as
practicable an earning statement covering a period of at least twelve months
beginning with the first fiscal quarter of the Company occurring after the date
of this Agreement, which shall satisfy the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the Commission
thereunder.
(i)
Whether or not the transactions contemplated in this Agreement are consummated
or this Agreement is terminated, to pay or cause to be paid all expenses
incident to the performance of its obligations under this Agreement, including:
(i) the fees, disbursements and expenses of the Company’s counsel and the
Company’s accountants in connection with the registration and delivery of the
Securities under the Securities Act and all other fees or expenses in connection
with the preparation and filing of the Registration Statement, any preliminary
prospectus, the Time of Sale Prospectus, the Prospectus, any free writing
prospectus prepared by or on behalf of, used by, or referred to by the Company
and amendments and supplements to any of the foregoing, including the filing
fees payable to the Commission relating to the Securities (within the time
required by Rule 456 (b)(1), if applicable), all printing costs associated
therewith, and the mailing and delivering of copies thereof to the Underwriters
and dealers, in the quantities hereinabove specified, (ii) all costs and
expenses related to the transfer and delivery of the Securities to the
Underwriters, including any transfer or other taxes payable thereon, (iii) the
cost of printing or producing any Blue Sky or legal investment memorandum in
connection with the offer and sale of the Securities under state securities laws
and all expenses in connection with the qualification of the Securities for
offer and sale under state securities laws as provided in Section 7(g) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection with such qualification and in connection with
the Blue Sky or legal investment
19
memorandum,
(iv) all filing fees and the reasonable fees and disbursements of counsel to the
Underwriters incurred in connection with the review and qualification of the
offering of the Securities by the Financial Industry Regulatory Authority, Inc.,
(v) any fees charged by the rating agencies for the rating of the Securities,
[(vi) all fees and expenses in connection with the preparation and filing of the
registration statement on Form 8-A relating to the Securities and all costs and
expenses incident to listing the Securities on [the NYSE/The NASDAQ Stock Market
LLC] [and other national securities exchanges and foreign stock exchanges],
(vii) the cost of the preparation, issuance and delivery of the Securities,
(viii) the costs and charges of any trustee, transfer agent, registrar or
depositary, (ix) the costs and expenses of the Company relating to investor
presentations on any “road show” undertaken in connection with the marketing of
the offering of the Securities, including, without limitation, expenses
associated with the preparation or dissemination of any electronic road show,
expenses associated with the production of road show slides and graphics, fees
and expenses of any consultants engaged in connection with the road show
presentations with the prior approval of the Company, travel and lodging
expenses of the representatives and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with the road
show, (x) the document production charges and expenses associated with printing
this Agreement and (xi) all other costs and expenses incident to the performance
of the obligations of the Company hereunder [(including fees and assessments to
be paid pursuant to the FDIC Program)]20 for
which provision is not otherwise made in this Section. It is understood,
however, that except as provided in this Section, Section 9 entitled “Indemnity
and Contribution,” and the last paragraph of Section 11 below, the Underwriters
will pay all of their costs and expenses, including fees and disbursements of
their counsel, transfer taxes payable on resale of any of the Securities by them
and any advertising expenses connected with any offers they may
make.
(j)
If the third anniversary of the initial effective date of the Registration
Statement occurs before all the Securities have been sold by the Underwriters,
prior to the third anniversary to file a new shelf registration statement and to
take any other action necessary to permit the public offering of the Securities
to continue without interruption; references herein to the Registration
Statement shall include the new registration statement declared effective by the
Commission or that automatically becomes effective upon filing with the
Commission in accordance with Rule 462(e) under the Securities Act.
(k) During
the period beginning on the date hereof and continuing to and including the
Closing Date, not to offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company, warrants to purchase or otherwise acquire debt
securities of the Company, warrants, purchase contracts or units
20
Include if FDIC Guaranteed Securities
are offered.
20
substantially similar to the Securities
(other than (i) the Securities, (ii) commercial paper issued in the ordinary
course of business or (iii) securities or warrants permitted with the prior
written consent of the Manager identified in Schedule I with the authorization
to release this lock-up on behalf of the Underwriters).21
(l) To
prepare, if the Managers so request, a final term sheet relating to the offering
of the Securities, containing only information that describes the final terms of
the Securities or the offering in a form consented to by you, and to file such
final term sheet within the period required by Rule 433(d)(5)(ii) under the
Securities Act following the date the final terms have been established for the
offering of the Securities.
[(m) To
calculate the Cap Amount, timely provide all reports, notices and certifications
to the FDIC, pay all fees and assessments, and preserve all information as
required under the TLGP Rule, including pursuant to Sections 370.3(c), 370.6 and
370.9 thereof.
(n) To
not use the proceeds received from the sale of the Securities for the prepayment
of any debt that is not “FDIC-guaranteed debt,” as such term is defined in the
TLGP Rule.
(o) To
include in each issuer-prepared offering document relating to the Securities,
including the Time of Sale Prospectus, the Prospectus and any issuer free
writing prospectus, the disclosure statement contained in Section 370.5(h)(2) of
the TLGP Rule.
(p) It
has directed the Underwriters not to, and the Company hereby confirms that it
will not, place the Securities with any affiliates, institution- affiliated
parties, insiders or insiders of affiliates of the Company, as prohibited by
Section 370.3(e)(5) of the TLGP Rule.]22
8. Covenants of the
Underwriters. Each of the several Underwriters represents and agrees with
the Company that:
(a) it
will not take any action that would result in the Company being required to file
with the Commission under Rule 433(d) a free writing prospectus prepared by or
on behalf of such Underwriter that otherwise would not be required to be filed
by the Company thereunder, but for the action of the Underwriter;
21
For issuances of
Convertible Debt Securities that include Common Stock, and certain other equity-linked products, add
reference to lock-up.
22
To supplement Section 7 if
FDIC Guaranteed Securities are offered.
21
(b) except
to the extent permitted under U.S. Treas. Reg. Section 1.163- 5(c)(2)(i)(D) (the
“D Rules”), (i) it has not offered or sold, and during the restricted period
will not offer or sell, Debt Securities in bearer form (including any Debt
Security in global form that is exchangeable for Securities in bearer form) to a
person who is within the United States or its possessions or to or for the
account of a United States person and (ii) it has not delivered and will not
deliver within the United States or its possessions definitive Debt Securities
in bearer form that are sold during the restricted period;
(c)
it has, and throughout the restricted period will have, in
effect procedures reasonably designed to ensure that its employees or agents who
are directly engaged in selling Debt Securities in bearer form are aware that
such Debt Securities may not be offered or sold during the restricted period to
a person who is within the United States or its possessions or to a United
States person, except as permitted by the D Rules;
(d)
if it is a United States person, it is acquiring the Debt Securities
in bearer form for purposes of resale in connection with their original issuance
and if it retains Debt Securities in bearer form for its own account, it will
only do so in accordance with the requirements of U.S. Treas. Reg. Section
1.163- 5(c)(2)(i)(D)(6);
(e)
if it transfers to any affiliate Debt Securities in bearer form for the
purpose of offering or selling such Debt Securities during the restricted
period, it will either (a) obtain from such affiliate for the benefit of the
Company the representations and agreements contained in Section 8(b), 8(c) and
8(d) or (b) repeat and confirm the representations and agreements contained in
Section 8(b), 8(c) and 8(d) on such affiliate’s behalf and obtain from such
affiliate the authority to so obligate it;
(f)
it will obtain for the benefit of the Company the representations and agreements
contained in Section 8(b), 8(c), 8(d) and 8(e) above from any person other than
its affiliate with whom it enters into a written contract, as defined in U.S.
Treas. Reg. Section 1.163-5(c)(2)(i)(D)(4) for the offer or sale during the
restricted period of Debt Securities in bearer form;
(g)
it will comply with or observe any other restrictions or limitations set forth
in the Prospectus on persons to whom, or the jurisdictions in which, or the
manner in which, the Debt Securities may be offered, sold, resold or
delivered;
[(h) it
will not place the Securities with any affiliates, institution- affiliated
parties, insiders or insiders of affiliates of the Company, as prohibited by
Section 370.3(e)(5) of the TLGP Rule; and
22
(i) it
will include in any underwriter free writing prospectus the disclosure statement
contained in Section 370.5(h)(2) of the TLGP Rule.]23
The
restricted period is defined at U.S. Treas. Reg. Section 1.163-
5(c)(2)(i)(D)(7). The term “Debt Securities in bearer form,” as used in the
preceding paragraph, includes Units containing Debt Securities in bearer form.
All other terms used in the preceding paragraph have the meaning given to them
by the U.S. Internal Revenue Code and regulations thereunder, including the
D
Rules.
9.
Indemnity and
Contribution. (a) The Company agrees to indemnify and hold
harmless each Underwriter, each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act and each affiliate of any Underwriter within the meaning of
Rule 405 under the Securities Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus, the Time of Sale Prospectus, any issuer
free writing prospectus as defined in Rule 433(h) under the Securities Act, any
Company information that the Company has filed, or is required to file, pursuant
to Rule 433(d) under the Securities Act, or the Prospectus or any amendment or
supplement thereto, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use therein.
(b) Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, its directors, its officers who sign the Registration Statement and
each person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to such Underwriter, but only
with reference to information relating to such Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, the Time of Sale Prospectus,
any issuer free writing prospectus or the Prospectus or any amendment or
supplement thereto.
23
To supplement Section 8(a)
if FDIC Guaranteed Securities are offered.
23
(c) In
case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to Section 9(a) or 9(b), such person (the “indemnified party”) shall
promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in
writing and the indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying party
and the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by the Manager authorized to
appoint counsel under this Section 9 as set forth in Schedule I hereto, in the
case of parties indemnified pursuant to Section 9(a), and by the Company, in the
case of parties indemnified pursuant to Section 9(b). The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) To
the extent the indemnification provided for in Section 9(a) or 9(b) is
unavailable to an indemnified party or insufficient in respect of any
losses,
24
claims,
damages or liabilities referred to therein, then each indemnifying party under
such paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Securities
or (ii) if the allocation provided by clause 9(d)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 9(d)(i) above but also the relative
fault of the Company on the one hand and of the Underwriters on the other hand
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other hand in connection with the offering of the
Securities shall be deemed to be in the same respective proportions as the net
proceeds from the offering of the Securities (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters bear to the aggregate initial public offering price
of the Securities as set forth in the Prospectus. The relative fault of the
Company on the one hand and of the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the
Underwriters and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
Underwriters’ respective obligations to contribute pursuant to this Section 9
are several in proportion to the respective principal amounts of Securities they
have purchased hereunder, and not joint.
(e) The
Company and the Underwriters agree that it would not be just or equitable if
contribution pursuant to this Section 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 that does not take account of the equitable
considerations referred to in Section 9(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 9(d) shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 9, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 9 are not exclusive
25
and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(f)
The
indemnity and contribution provisions contained in this Section 9 and the
representations, warranties and other statements of the Company contained in
this Agreement shall remain operative and in full force and effect, regardless
of (i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter, any person controlling any Underwriter or any
affiliate of any Underwriter or by or on behalf of the Company, its officers or
directors or any person controlling the Company and (iii) acceptance of and
payment for any of the Securities.
10. Termination. The
Underwriters may terminate this Agreement by notice given by
you to the Company if, after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the NYSE Alternext US LLC, The NASDAQ Stock Market LLC, the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade [or other relevant exchanges], (ii) trading of any securities of the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a material disruption in securities settlement, payment or
clearance services in the United States [or other relevant jurisdiction] shall
have occurred, (iv) any moratorium on commercial banking activities shall have
been declared by Federal or New York State [or relevant foreign country24]
authorities or (v) there shall have occurred any outbreak or escalation of
hostilities, or any change in financial markets (or, if the Securities are
denominated in a currency other than U.S. dollars, any change in currency
exchange rates or controls) or any calamity or crisis that, in your judgment, is
material and adverse and which, singly or together with any other event
specified in this clause (v), makes it, in your judgment, impracticable or
inadvisable to proceed with the offer, sale or delivery of the Securities on the
terms and in the manner contemplated in the Time of Sale Prospectus or the
Prospectus.
11. Effectiveness; Defaulting
Underwriters. This Agreement shall become effective upon
the execution and delivery hereof by the parties hereto.
If, on the
Closing Date, any one or more of the Underwriters shall fail or refuse to
purchase Underwriters’ Securities that it has or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Underwriters’
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate principal
amount of the Underwriters’ Securities to be purchased on
24
Include if transaction
involves offshore settlement.
26
such date,
the other Underwriters shall be obligated severally in the proportions that the
principal amount of Securities set forth opposite their respective names in
Schedule II bears to the aggregate principal amount of Securities set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as you may specify, to purchase the Underwriters’ Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event
shall the principal amount of Underwriters’ Securities that any Underwriter has
agreed to purchase pursuant to this Agreement be increased pursuant to this
Section 11 by an amount in excess of one-ninth of such principal amount of
Underwriters’ Securities without the written consent of such Underwriter. If, on
the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Underwriters’ Securities and the aggregate principal amount of
Underwriters’ Securities with respect to which such default occurs is more than
one-tenth of the aggregate principal amount of Underwriters’ Securities to be
purchased on such date, and arrangements satisfactory to you and the Company for
the purchase of such Underwriters’ Securities are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Company. In any such case either you or
the Company shall have the right to postpone the Closing Date but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement, in the Time of Sale Prospectus, in the Prospectus or in
any other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.25
If this
Agreement shall be terminated by the Underwriters, or any of them, because of
any failure or refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this Agreement, the
Company will reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all out-of-
pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
12.
Entire
Agreement. (a) This Agreement, together with any contemporaneous written
agreements and any prior written agreements (to the extent not superseded by
this Agreement) that relate to the offering of the Securities, represents the
entire agreement between the Company and the Underwriters with respect to the
preparation of any preliminary prospectus, the Time of Sale Prospectus, the
Prospectus, the conduct of the offering, and the purchase and sale of the
Securities.
25
This section will require
modification for offerings of Warrants or Units.
27
(b)
The Company acknowledges that in connection with the offering of the Securities:
(i) the Underwriters have acted at arms length, are not agents of, and owe no
fiduciary duties to, the Company or any other person, (ii) the Underwriters owe
the Company only those duties and obligations set forth in this Agreement and
prior written agreements (to the extent not superseded by this Agreement), if
any, and (iii) the Underwriters may have interests that differ from those of the
Company. The Company waives to the full extent permitted by applicable law any
claims it may have against the Underwriters arising from an alleged breach of
fiduciary duty in connection with the offering of the Securities.
13. Counterparts. This
Agreement may be signed in two or more counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
14. Applicable Law. This
Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
15. Headings. The
headings of the sections of this Agreement have been inserted
for convenience of reference only and shall not be deemed a part of this
Agreement.
16. Notices. All
communications hereunder shall be in writing and effective only
upon receipt and if to the Underwriters shall be delivered, mailed or sent to
you at the address set forth in Schedule I hereto; and if to the Company shall
be delivered, mailed or sent to the address set forth in Schedule I
hereto.
|
Very
truly yours,
|
|||
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
Accepted
as of the date hereof
[NAMES OF
CO-MANAGERS]
Acting
severally on behalf of themselves and
the
several Underwriters named in
Schedule
II hereto
By: [Names
of Co-Managers]
28
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
29
SCHEDULE I26
|
Managers:
|
[▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated/
▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. International plc]
[additional
Managers]
|
|
|
Manager
authorized to release lock-up under Section 7(k): [▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated/▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International
plc]
|
||
|
Manager
authorized to appoint counsel under Section 9(c): [▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated/▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International plc]
|
||
|
Indenture:
|
[Senior/Subordinated]
Debt Indenture dated as of ________________, 20__ between the Company and
the Trustee [Add Any Amendments]
|
|
|
Trustee:
|
||
|
Registration
Statement File No.:
|
333-[ ]
|
|
|
Time
of Sale Prospectus
|
1.
Prospectus dated ● relating to the Shelf Securities
2.
[the preliminary prospectus supplement dated ● relating to the
Securities]
3.
[free writing prospectus containing a description of terms that does not
reflect final terms, if the Time of Sale Prospectus does not include a
final term sheet]
4.
[Identify all free writing prospectuses filed by the Company under Rule
433(d) of
|
26
Schedule I will be modified for Shelf Securities other than Debt Securities, as
applicable.
I-1
|
the Securities Act]
5. [orally
communicated pricing information to be included on Schedule I if a final
term sheet is not used] [to be discussed]
|
||
|
Securities
to be purchased:
|
[insert
Full Title of Securities]
|
|
|
CUSIP/ISIN/Common
Code:
|
||
|
Aggregate
Principal Amount:
|
$___________
|
|
|
Purchase
Price:
|
____%
of the principal amount of the Securities, plus accrued interest, if any,
from ________________, 20__
|
|
|
Contract
Securities Commission
Price
to Public:
|
% of
the principal amount of the Contract Securities
|
|
|
Maturity
Date:
|
________________,
20__
|
|
|
Original
Issue Date:
|
||
|
Accrual
Date:
|
||
|
Interest
Rate:27
|
____%
per annum, accruing from
__________________,
20__
|
|
|
Interest
Payment Dates:
|
||
|
Interest
Payment Dates:
|
_____________
and ______________ commencing ________________, 20__
|
|
|
Interest
Payment Period:
|
||
|
Optional
Repayment Date(s):
|
||
|
Optional
Redemption Date(s):
|
||
|
Initial
Redemption Date(s):
|
||
27
Insert additional terms, as applicable: For floating-rate Securities,
include Base Rate, Index Maturity, Index Currency, Spread (Plus or Minus),
Spread Multiplier, Initial Interest Rate, Initial Interest Reset Date, Interest
Reset Dates, Interest Reset Period, Maximum Interest Rate, Minimum Interest
Rate, Calculation Agent, Reporting Service; and such other terms as may be
needed to describe the Securities.
I-2
|
Initial
Redemption Percentage:
|
||
|
Annual
Redemption Percentage
Reduction:
|
||
|
Ranking:
|
||
|
Minimum
Denominations:
|
||
|
Place
of Delivery:
|
||
|
Specified
Currency:
|
||
|
[FDIC
Guarantee:28
|
]
|
|
|
Closing
Date and Time:
|
________________,
20__ __:__ a.m.
|
|
|
Closing
Location:
|
Sidley
Austin LLP
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
|
|
Address
for Notices to Underwriters:
|
||
|
Address
for Notices to the Company:
|
28
Insert if FDIC Guaranteed Securities are offered and have the benefit of the
FDIC guarantee.
I-3
SCHEDULE
II
|
Underwriter
|
Principal
Amount
of
Securities To Be
Purchased
|
|
|
[NAMES
OF
MANAGERS]
|
||
|
[NAMES
OF OTHER UNDERWRITERS]
|
||
|
Total
|
$
|
I-4
SCHEDULE
III
DELAYED
DELIVERY CONTRACT
________,
200_
Ladies and
Gentlemen:
The
undersigned hereby agrees to purchase from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a Delaware
corporation (the “Company”), and the Company agrees to sell to the undersigned
the Company’s securities described in Schedule A annexed hereto (the
“Securities”), offered by the Company’s Prospectus dated
,
200_ and Prospectus Supplement dated ,
200_, receipt of copies of which are hereby acknowledged, at a purchase price
stated in Schedule A hereto and on the further terms and conditions set forth in
this Agreement. The undersigned does not contemplate selling
Securities prior to making payment therefor.
The
undersigned will purchase from the Company Securities in the principal amount
and numbers on the delivery dates set forth in Schedule A
hereto. Each such date on which Securities are to be purchased
hereunder is hereinafter referred to as a “Delivery Date.”
Payment
for the Securities which the undersigned has agreed to purchase on each Delivery
Date shall be made to the Company in Federal or other funds immediately
available in New York City at the office of
,
New York, N.Y., at 10:00 a.m. (New York City time) on the Delivery Date, upon
delivery to the undersigned of the Securities to be purchased by the undersigned
on the Delivery Date, in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed to
the Company not less than five full business days prior to the Delivery
Date.
The
obligation of the undersigned to take delivery of and make payment for the
Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not at
the time of delivery be prohibited under the laws of the jurisdiction to which
the undersigned is subject and (2) the Company shall have sold, and delivery
shall have taken place to the underwriters (the “Underwriters”) named in the
Prospectus Supplement referred to above of, such part of the Securities as is to
be sold to them. Promptly after completion of sale and delivery to
the Underwriters, the Company will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by a copy of the
opinion of counsel for the Company delivered to the Underwriters in connection
therewith.
A-1
Failure to
take delivery of and make payment for Securities by any purchaser under any
other Delayed Delivery Contract shall not relieve the undersigned of its
obligations under this agreement.
This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors, but will not be assignable by either party
hereto without the written consent of the other.
If this
Agreement is acceptable to the Company, it is requested that the Company sign
the form of acceptance below and mail or deliver one of the counterparts hereof
to the undersigned at its address set forth below. This will become a
binding agreement, as of the date first above written, between the Company and
the undersigned when such counterpart is so mailed or delivered.
This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of New York.
|
Very
truly yours,
|
|||
| (Purchaser) | |||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
| Address: | |||
Accepted
as of the date hereof
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
A-2
PURCHASER
— PLEASE COMPLETE AT TIME OF SIGNING
The name
and telephone and department of the representative(s) of the Purchaser with whom
details of delivery on the Delivery Date may be discussed is as
follows:
(Please
print.)
|
Name
|
Telephone No. (including Area
Code)
|
Department
|
||
A-3
SCHEDULE
A
(to
Schedule III)
Securities:
Principal
Amounts or Numbers to be Purchased:
Purchase
Price:
Delivery:
A-4