EXHIBIT 1.1(b)
▇▇▇▇▇▇ ▇▇▇▇ EDUCATORS CORPORATION
EQUITY SECURITIES
UNDERWRITING AGREEMENT
____________, 20___
To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described.
Ladies and Gentlemen:
From time to time ▇▇▇▇▇▇ ▇▇▇▇ Educators Corporation, a Delaware
corporation (the "COMPANY"), proposes to enter into one or more Pricing
Agreements (each a "PRICING AGREEMENT") in the form of Annex I hereto, with such
additions and deletions as the parties thereto may determine, and, subject to
the terms and conditions stated herein and therein, to issue and sell to the
firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "UNDERWRITERS" with respect to such Pricing Agreement and the
securities specified therein) certain shares of its common stock or preferred
stock (the "SHARES") specified in Schedule II to such Pricing Agreement (with
respect to such Pricing Agreement, the "FIRM SHARES"). If specified in such
Pricing Agreement, the Company may grant to the Underwriters the right to
purchase at their election an additional number of shares, specified in such
Pricing Agreement as provided in Section 3 hereof (the "OPTIONAL SHARES"). The
Firm Shares and the Optional Shares, if any, which the Underwriters elect to
purchase pursuant to Section 3 hereof are herein collectively called the
"DESIGNATED SHARES".
The terms and rights of any particular issuance of Designated Shares
shall be as specified in the Pricing Agreement relating thereto.
1. Particular sales of Designated Shares may be made from time to
time to the Underwriters of such Shares, for whom the firms designated as
representatives of the Underwriters of such Shares in the Pricing Agreement
relating thereto will act as representatives (the "REPRESENTATIVES"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the Shares
or as an obligation of any of the Underwriters to purchase any of the Shares.
The obligation of the Company to issue and sell any of the Shares and the
obligation of any of the Underwriters to purchase any of the Shares shall be
evidenced by the Pricing Agreement with respect to the Designated Shares
specified therein. Each Pricing Agreement shall specify the aggregate number of
the Firm Shares, the maximum number of Optional Shares, if any, the initial
public offering price of such Designated Shares or the manner of determining
such price, the purchase price to the Underwriters of such Designated Shares,
the names of the Underwriters of such Designated Shares, the names of the
Representatives of such
Underwriters, the number of such Designated Shares to be purchased by each
Underwriter and the commission, if any, payable to the Underwriters with respect
thereto and shall set forth the date, time and manner of delivery of such Firm
Shares and Optional Shares, if any, and payment therefor. The Pricing Agreement
also shall specify, to the extent not set forth in the registration statement
and prospectus with respect thereto, the terms of such Designated Shares. A
Pricing Agreement shall be in the form of an executed writing, which may be in
counterparts, and may be evidenced by an exchange of email communications or any
other rapid transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters under this
Agreement and each Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each
of the Underwriters that:
(a) A registration statement on Form S-3 (File No
333-_______) (the "INITIAL REGISTRATION STATEMENT") in respect of the
Shares has been filed with the Securities and Exchange Commission (the
"COMMISSION"). The Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered
or to be delivered to the Representatives and, excluding exhibits to
the Initial Registration Statement, but including all documents
incorporated by reference in the prospectus contained therein, to the
Representatives for each of the other Underwriters, have been declared
effective by the Commission in such form. Other than a registration
statement, if any, increasing the size of the offering (a "RULE 462(b)
REGISTRATION STATEMENT"), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), which became
effective upon filing, no other document with respect to the Initial
Registration Statement or document incorporated by reference therein
has heretofore been filed, or transmitted for filing, with the
Commission (other than prospectuses filed pursuant to Rule 424(b) of
the rules and regulations of the Commission under the Securities Act,
each in the form heretofore delivered to the Representatives). No stop
order suspending the effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for
that purpose has been initiated or threatened by the Commission. Any
preliminary prospectus included in the Initial Registration Statement
or filed with the Commission pursuant to Rule 424(a) under the
Securities Act, is called a "PRELIMINARY PROSPECTUS". The Initial
Registration Statement and any Rule 462(b) Registration Statement,
including all exhibits thereto and the documents incorporated by
reference in the prospectus contained in the Initial Registration
Statement at the time the Initial Registration Statement became
effective, each as amended at the time the Initial Registration
Statement became effective, are collectively called the "REGISTRATION
STATEMENT". The prospectus relating to the Shares, in the form in which
it has most recently been filed, or transmitted for filing, with the
Commission on or prior to the date of this Agreement, is called the
"PROSPECTUS". Any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the information
incorporated by reference therein, as updated or superseded as provided
therein pursuant to the rules and regulations of the Commission
relating to registration statements on Form S-3 and prospectuses as of
the date of such Preliminary Prospectus or Prospectus, as the case may
be. Any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include
any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT"), and incorporated by reference in
such Preliminary Prospectus or Prospectus, as the case may be. Any
reference to any amendment
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to the Initial Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the
Initial Registration Statement that is incorporated by reference in the
Registration Statement. Any reference to the Prospectus as amended or
supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable Designated Shares in the
form in which it is filed with the Commission pursuant to Rule 424(b)
under the Securities Act in accordance with Section 5(a) hereof,
including any documents incorporated by reference therein as of the
date of such filing.
(b) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder,
and none of such documents contained an 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. Any further
documents so filed and incorporated by reference in the Prospectus or
any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder and 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 not
misleading. The representations and warranties in this Section 2(b)
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by an Underwriter of Designated Shares through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Shares.
(c) The Registration Statement and the Prospectus
conform, and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects to
the requirements of the Securities Act and the rules and regulations of
the Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
representations and warranties in this Section 2(c) shall not apply to
any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter
of Designated Shares through the Representatives expressly for use in
the Prospectus as amended or supplemented relating to such Shares.
(d) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, and except as
set forth therein or contemplated thereby, there has not been any
material change in the capital stock or long-term debt of the Company
or any material adverse change, or any development reasonably likely to
result in involving a material adverse change, in or affecting the
business, financial condition, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole.
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(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus.
(f) The Company has an authorized capitalization as set
forth in the Prospectus. All of the issued and outstanding shares of
capital stock of the Company have been duly authorized and validly
issued and are fully paid and non-assessable.
(g) The Designated Shares have been duly authorized. When
the Designated Shares are issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to Firm Shares, and in
the case of any Optional Shares pursuant to Over-allotment Options (as
defined in Section 3 hereof) with respect to such Optional Shares, such
Designated Shares will be validly issued and fully paid and
non-assessable. The Shares conform to the description thereof contained
in the Registration Statement and the Designated Shares will conform to
the description thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Shares.
(h) The issue and sale of the Shares and the compliance
by the Company with the provisions of this Agreement, any Pricing
Agreement and each Over-allotment Option, if any, and the consummation
of the transactions contemplated herein and therein will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
the Company is a party that is material to the Company and its
subsidiaries taken as a whole, nor will such action result in any
violation of the provisions of the Certificate of Incorporation or
By-laws of the Company or any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over
the Company. No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Shares or the
consummation by the Company of the transactions contemplated by this
Agreement or the Pricing Agreement or any Over-allotment Option with
respect to the Designated Shares, except such as have been, or will
have been prior to each Time of Delivery (as defined in Section 4
hereof), obtained under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters.
(i) Except set forth in or contemplated by the
Prospectus, each of ▇▇▇▇▇▇ ▇▇▇▇ Lloyds, ▇▇▇▇▇▇ ▇▇▇▇ Property & Casualty
Insurance Company, ▇▇▇▇▇▇ ▇▇▇▇ Insurance Company, Teachers Insurance
Company, ▇▇▇▇▇▇ ▇▇▇▇ Life Insurance Company and Allegiance Life
Insurance Company (collectively referred to as the "INSURANCE
SUBSIDIARIES") is in compliance with the requirements of the insurance
laws and regulations of its jurisdiction of incorporation and the
insurance laws and regulations of the jurisdictions that are
applicable to each such Insurance Subsidiary, and has filed all
notices, reports, documents or other information required to be filed
thereunder, except where the failure to so comply or file would not
have, individually or in the aggregate, a material adverse effect on
the Company and its subsidiaries taken as a whole.
(j) Except as set forth in or contemplated by the
Prospectus, the Company and its Insurance Subsidiaries have made no
changes in their insurance reserving practices since the
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most recent financial statements included or incorporated in the
Prospectus, except for changes that would not have, individually or in
the aggregate, a material adverse effect on the Company and its
subsidiaries taken as a whole.
(k) Except as set forth in or contemplated by the
Prospectus, all material reinsurance treaties and arrangements to which
any Insurance Subsidiary is a party are in full force and effect and no
Insurance Subsidiary is in violation of or in default in the
performance, observance or fulfillment of, any obligation, agreement,
covenant or condition contained therein, except to the extent
adequately and properly reserved for in the consolidated financial
statements of the Company included or incorporated by reference in the
Prospectus and for such violations or defaults that would not have,
individually or in the aggregate, a material adverse effect on the
Company and its subsidiaries taken as a whole.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Shares and authorization by the Representatives of the release of the
Firm Shares, the several Underwriters propose to offer the Firm Shares for sale
upon the terms and conditions set forth in the Prospectus as amended or
supplemented.
The Company may specify in the Pricing Agreement applicable to any
Designated Shares that the Company thereby grants to the Underwriters the right
(an "OVER-ALLOTMENT OPTION") to purchase at their election up to the number of
Optional Shares set forth in such Pricing Agreement, on the same terms as the
Firm Shares, for the sole purpose of covering over-allotments in the sale of the
Firm Shares. Any such election to purchase Optional Shares may be exercised by
written notice from the Representatives to the Company, given within a period
specified in the Pricing Agreement, setting forth the aggregate number of
Optional Shares to be purchased and the date on which such Optional Shares are
to be delivered, as determined by the Representatives but in no event earlier
than the First Time of Delivery or, unless the Representatives and the Company
otherwise agree in writing, earlier than or later than the respective number of
business days after the date of such notice set forth in such Pricing Agreement.
The number of Optional Shares to be added to the number of Firm Shares
to be purchased by each Underwriter as set forth in Schedule I to the Pricing
Agreement applicable to such Designated Shares shall be, in each case, the
number of Optional Shares that the Company has been advised by the
Representatives have been attributed to such Underwriter; provided that, if the
Company has not been so advised, the number of Optional Shares to be so added
shall be, in each case, that proportion of Optional Shares which the number of
Firm Shares to be purchased by such Underwriter under such Pricing Agreement
bears to the aggregate number of Firm Shares (rounded as the Representatives may
determine to the nearest 100 shares). The total number of Designated Shares to
be purchased by all the Underwriters pursuant to such Pricing Agreement shall be
the aggregate number of Firm Shares set forth in Schedule I to such Pricing
Agreement plus the aggregate number of Optional Shares which the Underwriters
elect to purchase.
4. Certificates for the Firm Shares and the Optional Shares to be
purchased by each Underwriter pursuant to the Pricing Agreement relating
thereto, in the form specified in such Pricing Agreement and in such authorized
denominations and registered in such names as the Representatives may request
upon at least 48 hours prior notice to the Company, shall be delivered by or on
behalf of the Company to the Representatives for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by wire transfer of Federal
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(same-day) funds to the account specified by the Company to the Representatives
at least 48 hours in advance as specified in such Pricing Agreement: (i) with
respect to the Firm Shares, all in the manner and at the place and time and date
specified in such Pricing Agreement or at such other place and time and date as
the Representatives and the Company may agree upon in writing, such time and
date being called the "FIRST TIME OF DELIVERY"; and (ii) with respect to the
Optional Shares, if any, in the manner and at the time and date specified by the
Representatives in the written notice given by the Representatives of the
Underwriters' election to purchase such Optional Shares, or at such other time
and date as the Representatives and the Company may agree upon in writing, such
time and date, if not the First Time of Delivery, herein called the "SECOND TIME
OF DELIVERY". Each such time and date for delivery is herein called a "TIME OF
DELIVERY".
5. The Company agrees with each of the Underwriters of any
Designated Shares that:
(a) The Company will:
(i) prepare the Prospectus as amended or
supplemented in relation to the applicable Designated Shares
in a form approved by the Representatives and file such
Prospectus pursuant to Rule 424(b) under the Securities Act
not later than the Commission's close of business on the
second business day following the execution and delivery of
the Pricing Agreement relating to the applicable Designated
Shares or, if applicable, such earlier time as may be required
by Rule 424(b);
(ii) make no further amendment or any supplement
to the Registration Statement or Prospectus as amended or
supplemented after the date of the Pricing Agreement relating
to such Shares and prior to any Time of Delivery for such
Shares which shall be disapproved by the Representatives for
such Shares promptly after reasonable notice thereof;
(iii) advise the Representatives promptly of any
such amendment or supplement after any Time of Delivery for
such Shares and furnish the Representatives with copies
thereof; and
(iv) promptly file all reports and any definitive
proxy or information statements required to be filed by the
Company with the Commission pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act for so long as the delivery of
a prospectus is required in connection with the offering or
sale of such Shares, and during such period advise the
Representatives, promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed with the
Commission, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
prospectus relating to the Shares, of the suspension of the
qualification of such Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the
Commission to amend or supplement the Registration Statement
or Prospectus or for additional information; and, in the event
of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to
the Shares or suspending any such qualification, promptly to
use its best efforts to obtain the withdrawal of such order.
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(b) The Company, promptly from time to time, will take
such action as the Representatives reasonably may request to qualify
such Designated Shares for offering and sale under the securities laws
of such jurisdictions as the Representatives reasonably may request and
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of such Designated Shares, provided that
in connection therewith the Company shall not be required to qualify as
a foreign corporation or to file a general consent to service of
process in any jurisdiction.
(c) Prior to 10:00 a.m., New York City time, on the New
York Business Day next succeeding the date of this Agreement and from
time to time, the Company will deliver written and electronic copies of
the Prospectus as amended or supplemented to the Underwriters in New
York City, in such quantities as the Representatives reasonably may
request. If the delivery of a prospectus is required at any time in
connection with the offering or sale of the Shares and if at such time
any event shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made when such Prospectus is delivered, not misleading, or if
for any other reason it shall be necessary during such period to
amend or supplement the Prospectus or to file under the Exchange Act
any document incorporated by reference in the Prospectus in order to
comply with the Securities Act or the Exchange Act, the Company will
notify the Representatives and upon their request will file such
document and prepare and furnish without charge to each Underwriter and
to any dealer in securities as many written and electronic copies as
the Representatives from time to time reasonably may request of an
amended Prospectus or a supplement to the Prospectus that will correct
such statement or omission or effect such compliance.
(d) The Company will make generally available to its
securityholders as soon as practicable, but in any event not later than
18 months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Securities Act), an earnings statement
of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder (including, at the option of
the Company, Rule 158).
(e) During the period beginning from the date of the
Pricing Agreement for such Designated Shares and continuing to and
including the later of (i) the termination of trading restrictions for
such Designated Shares, as notified to the Company by the
Representatives and (ii) the last Time of Delivery for such Designated
Shares, the Company will not offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder, any securities of the Company
that are substantially similar to the Designated Shares, including any
securities that are convertible into or exchangeable for, or that
represent the right to receive, Shares or any such substantially
similar securities (other than pursuant to employee stock option plans
existing on, or upon the conversion of convertible or exchangeable
securities outstanding as of, the date of the Pricing Agreement for
such Designated Shares) without the prior written consent of the
Representatives.
(f) If the Company elects to rely upon Rule 462(b), the
Company shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by
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10:00 p.m., Washington, DC time, on the date of this Agreement, and at
the time of filing the Company shall either pay to the Commission the
filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Securities Act.
6. The Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Securities Act and all
other expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) all expenses in connection with
the qualification of the Shares for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky Memorandum; (iii) any filing
fees incident to, and the reasonable fees and disbursements of counsel for the
Underwriters in connection with, any required review by the National Association
of Securities Dealers, Inc. of the terms of the sale of the Shares; (iv) the
cost of preparing certificates for the Shares; (v) the cost and charges of any
transfer agent or registrar or dividend disbursing agent; and (vi) all other
costs and expenses incident to the performance of its obligations hereunder and
under any Over-allotment Options that are not otherwise specifically provided
for in this Section 6. It is understood, however, that, except as provided in
this Section 6, and Sections 8 and 11 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their counsel, transfer
taxes on resale of any of the Shares by them, and any advertising expenses
connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Shares
under the Pricing Agreement relating to such Designated Shares shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Shares are, at and as of each Time of Delivery for such Designated Shares, true
and correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed and the following additional
conditions:
(a) The Prospectus as amended or supplemented in relation
to such Designated Shares shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Securities Act
and in accordance with Section 5(a) hereof. If the Company has elected
to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall
have become effective by 10:00 p.m., Washington, DC time, on the date
of this Agreement. No stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened
by the Commission. All requests for additional information on the part
of the Commission shall have been complied with to the Representatives'
reasonable satisfaction.
(b) Counsel for the Underwriters shall have furnished to
the Representatives such written opinion or opinions, dated each Time
of Delivery for such Designated Shares, with respect to the valid
existence of the Company, the validity of the Designated Shares, the
Registration Statement, the Prospectus and such other related matters
as the Representatives
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reasonably may request, and such counsel shall have received such
documents and information as they reasonably may request to enable them
to pass upon such matters.
(c) Counsel for the Company satisfactory to the
Representatives shall have furnished to the Representatives their
written opinion, dated each Time of Delivery for such Designated
Shares, in form and substance satisfactory to the Representatives, to
the effect that:
(i) The Company is a validly existing
corporation in good standing under the laws of the State of
Delaware, with the requisite corporate power and authority to
own its properties and conduct its business as described in
the Prospectus as amended or supplemented.
(ii) The Company has an authorized capitalization
as set forth in the Prospectus as amended or supplemented. The
Designated Shares being delivered at such Time of Delivery
have been duly authorized and, when issued and delivered to
and paid for by the Underwriters in accordance with the terms
of the Underwriting Agreement, will be validly issued and
fully paid and non-assessable. The Designated Shares conform
to the description thereof in the Prospectus as amended or
supplemented.
(iii) The Company has the corporate power and
authority to execute and deliver the Underwriting Agreement,
the Pricing Agreement.
(iv) The execution, delivery and performance of
the Underwriting Agreement and the Pricing Agreement have been
duly authorized by all necessary corporate action. The
Underwriting Agreement and the Pricing Agreement have been
duly executed and delivered by the Company.
(v) No consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body having jurisdiction over the
Company is required to be obtained by the Company for the
issue and sale by the Company of the Designated Shares being
delivered at such Time of Delivery, except such as have been
obtained under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the
Designated Shares by the Underwriters.
(vi) Insofar as the statements in the Prospectus
under the captions "Description of Capital Stock" and
"Underwriting" constitute a summary of the documents referred
to therein, such statements fairly present in all material
respects the information required to be disclosed under the
Securities Act and the rules and regulations of the Commission
relating to registration statements on Form S-3 and
prospectuses.
(vii) The Registration Statement has become
effective under the Securities Act.
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In addition, such counsel shall state 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 or the Prospectus, such counsel has no
reason to believe: (a) that the Registration Statement, at the time it
became effective (which, for purposes of such counsel's expression of
belief, shall have the meaning set forth in Rule 158(c) under the
Securities Act) or the Prospectus, as of its date or as of such Time of
Delivery, were not appropriately responsive in all material respects to
the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder; or (b)(i) that the
Registration Statement, at the time it became effective, contained an
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 or (ii) that the Prospectus, as of its date or
as of such Time of Delivery, contained or contains an 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. In expressing
its belief, such counsel may state that it expresses no belief as to
the financial statements and related schedules, or the Statement of
Eligibility on Form T-1, contained or incorporated by reference in the
Registration Statement or the Prospectus. Such counsel also shall state
that it does not know of any contract or other document of a character
required to be described in the Registration Statement or Prospectus,
or filed as an exhibit thereto, that is not described or filed as
required.
(d) At each Time of Delivery for such Designated Shares,
the independent accountants of the Company who have certified the
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement shall have
furnished to the Representatives a letter, dated such Time of Delivery,
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to the
Company's financial statements and certain financial information
contained or incorporated by reference in the Registration Statement
and the Prospectus.
(e) Except as set forth in or contemplated by the
Registration Statement and the Prospectus, the Company shall not have
sustained any loss or interference with its business from any calamity,
labor dispute or court or governmental action, order or decree, and
there shall not have been any change in the capital stock or long-term
debt of the Company or any change, or any development reasonably likely
to result in a change, in or affecting the business, financial
condition, stockholders' equity or results of operations of the Company
and its subsidiaries taken as a whole, the effect of which in any such
case is in your judgment so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Shares on the terms and in the manner
contemplated in the Prospectus as amended relating to the Designated
Shares.
(f) On or after the date of the Pricing Agreement
relating to the Designated Shares: (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities or
preferred stock or the Company's financial strength or claims paying
ability by any "nationally recognized statistical rating organization",
as that term is defined by the Commission for purposes of Rule
436(g)(2) under the Securities Act; and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's debt
securities or preferred stock or the Company's financial strength or
claims paying ability.
10
(g) On or after the date of the Pricing Agreement
relating to the Designated Shares there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension
or material limitation in trading in the Company's securities on New
York Stock Exchange; (iii) a general moratorium on commercial banking
activities declared by either Federal or New York State authorities or
a material disruption in commercial banking or securities settlement or
clearance services in the United States; (iv) the outbreak or
escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war; or (v)
the occurrence of any other calamity or crisis or any change in
financial, political or economic conditions in the United States or
elsewhere, if the effect of any such event specified in clause (iv) or
(v) in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Firm Shares or Optional Shares or both on the terms and in the manner
contemplated in the Prospectus as first amended or supplemented
relating to the Designated Shares.
(h) The Shares at each Time of Delivery shall have been
duly listed, subject to notice of issuance, on the New York Stock
Exchange.
(i) The Company shall have complied with the provisions
of Section 5(c) hereof with respect to the furnishing of prospectuses
on the New York Business Day next succeeding the date of the Pricing
Agreement relating to such Designated Shares.
(j) The Company shall have furnished or caused to be
furnished to the Representatives at each Time of Delivery for the
Designated Shares a certificate of officers of the Company satisfactory
to the Representatives as to the accuracy of the representations and
warranties of the Company herein at and as of such Time of Delivery, as
to the performance by the Company of all of its obligations hereunder
to be performed at or prior to such Time of Delivery, as to the matters
set forth in Sections 7(a) and (e) and as to such other matters as the
Representatives reasonably may request.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Designated
Shares, or any amendment 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 will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as
such expenses are incurred; provided, however, that the Company shall
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 an untrue statement
or alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and
any other prospectus relating to the Designated Shares, or any such
amendment or supplement, in reliance upon and in conformity with
written information furnished to the
11
Company by any Underwriter of Designated Shares through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Shares.
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the
Company may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and
any other prospectus relating to the Designated Shares, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating
to the Designated Shares, or any such amendment or supplement, in
reliance upon and in conformity with written information furnished to
the Company by such Underwriter through the Representatives expressly
for use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses
are incurred.
(c) Promptly after receipt by an indemnified party under
Section 8(a) or (b) of notice of the commencement of any action, such
indemnified party, if a claim in respect thereof is to be made against
the indemnifying party under Section 8(a) or (b), shall notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under Section 8(a) or (b). In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party,
be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable
to such indemnified party under Section 8(a) or (b) for any legal
expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. Without
the written consent of the indemnified party, no indemnifying party
shall effect the settlement or compromise of, or consent to the entry
of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or
claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 8
is unavailable to or insufficient to hold harmless an indemnified party
under Section 8(a) or (b) in respect of any
12
losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of
such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters
of the Designated Shares on the other from the offering of the
Designated Shares to which such loss, claim, damage or liability (or
action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice
required under Section 8(c), then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and
the Underwriters of the Designated Shares on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received
by the Company on the one hand and such Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from
such offering (before deducting expenses) received by the Company bear
to the total underwriting discounts and commissions received by such
Underwriters. The relative fault 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 on the one hand or
such Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this
Section 8(d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to in this Section 8(d). The amount paid or
payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to in
this Section 8(d) shall be deemed to include 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 8(d), no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the applicable Designated Shares
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which 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 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the
Underwriters of Designated Shares in this Section 8(d) to contribute
are several in proportion to their respective underwriting obligations
with respect to such Shares and not joint.
(e) The obligations of the Company under this Section 8
shall be in addition to any liability which the Company may otherwise
have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the
Securities Act. The obligations of the Underwriters under this Section
8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the
Securities Act.
13
9. (a) If any Underwriter shall default in its
obligation to purchase the Firm Shares or Optional Shares which it has
agreed to purchase under the Pricing Agreement relating to such Shares,
the Representatives may in their discretion arrange for themselves or
another party or other parties to purchase such Shares on the terms
contained herein. If within 36 hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Firm Shares or Optional Shares, as the case may be, then the Company
shall be entitled to a further period of 36 hours within which to
procure another party or other parties satisfactory to the
Representatives to purchase such Shares on such terms. In the event
that, within the respective prescribed period, the Representatives
notify the Company that they have so arranged for the purchase of such
Shares, or the Company notifies the Representatives that it has so
arranged for the purchase of such Shares, the Representatives or the
Company shall have the right to postpone a Time of Delivery for such
Shares for a period of not more than seven days, in order to effect
whatever changes thereby may be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the
Prospectus which in the opinion of the Representatives may thereby be
made necessary. The term "Underwriter" as used in this Agreement shall
include any person substituted under this Section 9 with like effect as
if such person had originally been a party to the Pricing Agreement
with respect to such Designated Shares.
(b) If, after giving effect to any arrangements for the
purchase of the Firm Shares or Optional Shares, as the case may be, of
a defaulting Underwriter or Underwriters by the Representatives and the
Company as provided in Section 9(a), the aggregate number of such
Shares that remains unpurchased does not exceed one-eleventh of the
aggregate number of the Firm Shares or Optional Shares, as the case may
be, to be purchased at the respective Time of Delivery, then the
Company shall have the right to require each non-defaulting Underwriter
to purchase the number of Firm Shares or Optional Shares, as the case
may be, that such Underwriter agreed to purchase under the Pricing
Agreement relating to such Designated Shares and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share
(based on the number of Firm Shares or Optional Shares, as the case may
be, that such Underwriter agreed to purchase under such Pricing
Agreement) of the Firm Shares or Optional Shares, as the case may be,
of such defaulting Underwriter or Underwriters for which such
arrangements have not been made, but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Firm Shares or Optional Shares, as the case may be, of
a defaulting Underwriter or Underwriters by the Representatives and the
Company as provided in Section 9(a), the aggregate number of Firm
Shares or Optional Shares, as the case may be, that remains unpurchased
exceeds one-eleventh of the aggregate number of the Firm Shares or
Optional Shares, as the case may be, to be purchased at the respective
Time of Delivery, as referred to in Section 9(b), or if the Company
shall not exercise the right described in Section 9(b) to require
non-defaulting Underwriters to purchase Firm Shares or Optional Shares,
as the case may be, of a defaulting Underwriter or Underwriters, then
the Pricing Agreement relating to such Firm Shares or the
Over-allotment Option relating to such Optional Shares, as the case may
be, shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to
be borne by the Company and the Underwriters as provided in
14
Section 6 hereof and the indemnity and contribution agreements in
Section 8 hereof, but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Shares.
11. If any Pricing Agreement or Over-allotment Option shall be
terminated pursuant to Section 9 hereof, the Company shall not then be under any
liability to any Underwriter with respect to the Firm Shares or Optional Shares
covered by such Pricing Agreement except as provided in Sections 6 and 8 hereof;
but, if for any other reason, Designated Shares are not delivered by or on
behalf of the Company as provided herein, other than the occurrence of an event
described in Section 7(g)(i), (iii), (iv) or (v), the Company will reimburse the
Underwriters through the Representatives for all out-of-pocket expenses approved
in writing by the Representatives, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of such Designated Shares, but the Company shall then be under
no further liability to any Underwriter with respect to such Designated Shares
except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Shares shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if any,
as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company as set forth in
the Registration Statement: Attention: Secretary; provided, however, that any
notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its address
set forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, the Company and, to
the extent provided in Sections 8 and 10 hereof, the officers and directors of
the Company and each person who controls the Company or any Underwriter, and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Shares from
any Underwriter shall be deemed a successor or assign merely by reason of such
purchase.
15
14. Time shall be of the essence of each Pricing Agreement. As
used herein, the term "business day" shall mean any day when the Commission's
office in Washington, DC is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by
any one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
17. The Company is authorized, subject to applicable law, to
disclose any and all aspects of this potential transaction that are necessary to
support any U.S. federal income tax benefits expected to be claimed with respect
to such transaction, and all materials of any kind (including tax opinions and
other tax analyses) related to those benefits, without the Underwriters imposing
any limitation of any kind.
16
ANNEX I
PRICING AGREEMENT
[NAMES OF REPRESENTATIVE(S)]
As Representatives of the several
Underwriters named in Schedule I hereto,
[c/o Book-Running Representative(s)]
[Address]
[City, State ZIP]
______________, 20__
Ladies and Gentlemen:
▇▇▇▇▇▇ ▇▇▇▇ Educators Corporation, a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated ____________, 20___ (the "Underwriting
Agreement"), to issue and sell to the Underwriters named in Schedule I hereto
(the "Underwriters") the Shares specified in Schedule II hereto (the "Designated
Shares" consisting of Firm Shares and any Optional Shares the Underwriters may
elect to purchase. Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein. Each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Shares which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of the Designated Shares pursuant to Section 12 of
the Underwriting Agreement and the address of the Representatives referred to in
such Section 12 are set forth in Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Shares, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, (a) the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time and
place and at the purchase price to the Underwriters set forth in Schedule II
hereto, the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto and, (b) in the event and to the extent that
the Underwriters shall exercise the election to purchase Optional Shares, as
provided below, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company at the purchase price to the Underwriters set forth in
Schedule II hereto that portion of the number of Optional Shares as to which
such election shall have been exercised.
The Company hereby grants to each of the Underwriters the right to
purchase at their election up to the number of Optional Shares set forth
opposite the name of such Underwriter in Schedule I hereto on the terms referred
to in the paragraph above for the sole purpose of covering over-allotments in
the sale of the Firm Shares. Any such election to purchase Optional Shares may
be exercised by written notice from the Representatives to the Company given
within a period of 30 calendar days after the date of this Pricing Agreement,
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by the
Representatives, but in no event earlier than the First Time of Delivery or,
unless the Representatives and the Company otherwise agree in writing, no
earlier than two or later than ten business days after the date of such notice.
If the foregoing is in accordance with your understanding, please sign
and return to us ______ counterparts hereof, and upon acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination, upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
▇▇▇▇▇▇ ▇▇▇▇ Educators Corporation
By: _________________________
Name:
Title:
Accepted as of the date hereof:
[Name of Book-Running Representative(s)]
[Name(s) of Co-Representative(s)]
By: ____________________
Name:
Title:
2
SCHEDULE I
MAXIMUM NUMBER
OF OPTIONAL
NUMBER OF SHARES WHICH
FIRM SHARES MAY BE
UNDERWRITER TO BE PURCHASED PURCHASED
----------- --------------- ---------
--------------- ---------
Total...............................
=============== =========
SCHEDULE II
TITLE OF DESIGNATED SHARES:
NUMBER OF DESIGNATED SHARES:
Number of Firm Shares:
Maximum Number of Optional Shares:
INITIAL OFFERING PRICE TO PUBLIC:
[$________ per Share] [Formula]
PURCHASE PRICE BY UNDERWRITERS:
[$________ per Share] [Formula]
COMMISSION PAYABLE TO UNDERWRITERS:
[$________ per Share]
FORM OF DESIGNATED SHARES:
Definitive form, to be made available for checking at least 24 hours
prior to the Time of Delivery at the office of The Depository Trust
Company or its designated custodian
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same-day) funds
DESCRIBE ANY BLACKOUT PROVISIONS WITH RESPECT TO THE DESIGNATED SHARES
TIME OF DELIVERY:
_________ a.m. (New York City time), __________________, 20__
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
1
Address for Notices, etc.:
OTHER TERMS:
2