Exhibit 1.03
Depositary Shares
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
UNDERWRITING AGREEMENT
----------------------
New York, New York
Dated the date set forth
In Schedule I hereto
To the Representative(s)
named in Schedule I
hereto, of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
▇▇▇▇▇▇ Brothers Holdings Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to you and the other underwriters named
in Schedule II hereto (the "Underwriters"), for whom you are acting as
representatives (the "Representatives"), the number of shares identified in
Schedule I hereto (the "Firm Shares") of the Company's preferred stock, par
value $1.00 per share (the "Preferred Stock") identified in Schedule I hereto.
In addition, if so indicated in Schedule I the Company proposes to grant to the
Underwriters an option to purchase up to an additional number of shares of the
Preferred Stock identified in Schedule I hereto on the terms and for the
purposes set forth in Section 2 (the "Option Shares"). The Firm Shares and the
Option Shares, if purchased, are hereinafter collectively called the "Shares".
The Shares are to be deposited by you or on your behalf against delivery of
Depositary Receipts (the "Depositary Receipts") to be issued by BankBoston,
N.A., as Depositary (the "Depositary"), under a Deposit Agreement, dated as of
(the "Deposit Agreement"), among the Company, the Depositary and holders from
time to time of the Depositary Receipts issued thereunder. The Depositary
Receipts will evidence Depositary Shares (the "Depositary Shares"), and each
Depositary Share will represent the fraction of a share of Preferred Stock
identified in Schedule I. The number of Depositary Shares in respect of Firm
Shares to be purchased by each Underwriter is identified in Schedule II. If the
firm or firms listed in Schedule II hereto include only the firm or firms listed
in Schedule I hereto, then the terms "Underwriters" and "Representatives" shall
each be deemed to refer to such firm or firms. This is to confirm the agreement
concerning the purchase of the Shares from the Company by the Underwriters named
in Schedule II hereto.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to each Underwriter that:
(a) The Company meets the requirements for the use of
Form S-3 under the Securities Act of 1933, as amended (the
"Securities Act"), and the rules and
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regulations promulgated thereunder (the "Rules"), and has
carefully prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form
S-3 (the file number of which is set forth in Schedule I
hereto), which has become effective, for the registration of
the Shares and the Depositary Shares under the Securities Act.
The registration statement, as amended at the date of this
Agreement, meets the requirements set forth in Rule
415(a)(1)(x) under the Securities Act and complies in all
other material respects with such rule. The Company proposes
to file with the Commission pursuant to Rule 424 under the
Securities Act ("Rule 424") a supplement to the form of
prospectus included in the registration statement relating to
the initial offering of the Shares and the Depositary Shares
and the plan of distribution thereof and has previously
advised you of all further information (financial and other)
with respect to the Company to be set forth therein. The term
"Registration Statement" means the registration statement, as
amended at the date of this Agreement, including the exhibits
thereto, financial statements, and all documents incorporated
therein by reference pursuant to Item 12 of Form S-3 (the
"Incorporated Documents"), and such prospectus as then
amended, including the Incorporated Documents, is hereinafter
referred to as the "Basic Prospectus"; and such supplemented
form of prospectus, in the form in which it shall be filed
with the Commission pursuant to Rule 424 (including the Basic
Prospectus as so supplemented), is hereinafter called the
"Final Prospectus". Any preliminary form of the Basic
Prospectus which has heretofore been filed pursuant to Rule
424 is hereinafter called the "Interim Prospectus". Any
reference herein to the Registration Statement, the Basic
Prospectus, any Interim Prospectus or the Final Prospectus
shall be deemed to refer to and include the Incorporated
Documents which were filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), on or before the
date of this Agreement or the issue date of the Basic
Prospectus, any Interim Prospectus or the Final Prospectus, as
the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Interim
Prospectus or the Final Prospectus shall be deemed to refer to
and include the filing of any Incorporated Documents under the
Exchange Act after the date of this Agreement or the issue
date of the Basic Prospectus, any Interim Prospectus or the
Final Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
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(b) As of the date hereof, when the Final Prospectus
is first filed with the Commission pursuant to Rule 424, when,
before either Delivery Date (hereinafter defined), any
amendment to the Registration Statement becomes effective,
when, before either Delivery Date, any Incorporated Document
is filed with the Commission, when any supplement to the Final
Prospectus is filed with the Commission and at each Delivery
Date, the Registration Statement, the Final Prospectus and any
such amendment or supplement will comply in all material
respects with the applicable requirements of the Securities
Act and the Rules, and the Incorporated Documents will comply
in all material respects with the requirements of the Exchange
Act or the Securities Act, as applicable, and the rules and
regulations adopted by the Commission thereunder, on the date
it became effective, the Registration Statement did not, and,
on the date that any post-effective amendment to the
Registration Statement becomes effective, the Registration
Statement as amended by such post-effective amendment did not
or will not, as the case may be, contain an untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading; on the date the Final Prospectus is
filed with the Commission pursuant to Rule 424 and on each
Delivery Date, the Final Prospectus, as it may be amended or
supplemented, will not include an untrue statement of a
material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they are made, not misleading; and
on said dates, the Incorporated Documents will comply in all
material respects with the applicable provisions of the
Exchange Act and rules and regulations of the Commission
thereunder, and, when read together with the Final Prospectus,
or the Final Prospectus as it may be then amended or
supplemented, will not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they are made, not
misleading; provided that the foregoing representations and
warranties in this paragraph (b) shall not apply to statements
or omissions made in reliance upon and in conformity with
written information furnished to the Company by or through the
Representatives on behalf of any Underwriter specifically for
use in connection with the preparation of the Registration
Statement or the Final Prospectus, as they may be amended or
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supplemented.
(c) The Basic Prospectus and any Interim Prospectus,
as of their respective dates, complied in all material
respects with the requirements of the Securities Act and of
the Rules and did not include any untrue statement of a
material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
Commission has not issued an order preventing or suspending
the use of the Basic Prospectus or any Interim Prospectus.
(d) The nationally recognized firm of independent
public accountants whose report appears in the Company's most
recent Annual Report on Form 10-K, which is incorporated by
reference in the Final Prospectus, are independent public
accountants as required by the Securities Act and the Rules.
(e) In the event that a report of a nationally
recognized firm of independent public accountants regarding
historical financial information with respect to any entity
acquired by the Company is required to be incorporated by
reference in the Final Prospectus, such independent public
accountants were independent public accountants, as required
by the Securities Act and the Rules, during the period of
their engagement to examine the financial statements being
reported on and at the date of their report.
(f) The audited consolidated financial statements of
the Company in the Final Prospectus and the Registration
Statement present fairly on a consolidated basis the financial
position, the results of operations, changes in common stock
and other stockholder's equity and cash flows of the Company
and its subsidiaries, as of the respective dates and for the
respective periods indicated, all in conformity with generally
accepted accounting principles applied on a consistent basis
throughout the periods involved. The unaudited consolidated
financial statements of the Company, if any, included in the
Final Prospectus and the Registration Statement and the
related notes are true, complete and correct, subject to
normally recurring changes resulting from year-end audit
adjustments, and have been prepared in accordance with the
instructions to Form 10-Q.
(g) Except as described in or contemplated by the
Registration Statement and the Final Prospectus, there has not
been any material adverse change in or any
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adverse development which materially affects the business,
properties, financial condition or results of the Company or
the Company and its subsidiaries taken as whole, from the
dates as of which information is given in the Registration
Statement and Final Prospectus.
(h) The Shares conform to the description thereof
contained in the Final Prospectus, are duly and validly
authorized, and, when issued and delivered against payment
therefor as provided in this Agreement, will be validly
issued, fully paid and non-assessable. The Depositary Shares
representing the Shares have been duly and validly authorized
by the Company; and assuming the due execution by the
Depositary of the Deposit Agreement and the due execution by
the Depositary and, if required by the Deposit Agreement, the
Registrar of the Depositary Receipts in accordance with the
terms of the Deposit Agreement and upon the deposit by or on
behalf of the Underwriters of the Shares with the Depositary
pursuant to the Deposit Agreement, the Depositary Shares will
represent legal and valid interests in the Shares and the
Depositary Receipts will constitute valid evidence of such
interests in the Shares and will be entitled to the benefits
of the Deposit Agreement.
(i) The Company does not have any subsidiaries having
business or properties that are material to the business and
properties of the Company and its subsidiaries taken as a
whole with the exception of ▇▇▇▇▇▇ Brothers Inc. ("▇▇▇▇▇▇")
and the possible exception of ▇▇▇▇▇▇ Commercial Paper Inc.
(the "Named Subsidiaries"). Neither the Company nor any of the
Named Subsidiaries is in violation of its corporate charter or
by-laws or in default under any agreement, indenture or
instrument, the effect of which violation or default would be
material to the Company and its subsidiaries taken as a whole.
The execution, delivery and performance of this Agreement or
the Deposit Agreement will not constitute a breach of, result
in the creation or imposition of any material lien, charge or
encumbrance upon any of the assets of the Company or any of
its subsidiaries pursuant to the terms of, or constitute a
default under, any material agreement, indenture or
instrument, or result in a violation of the corporate charter
or by-laws of the Company or any of its subsidiaries or any
order, rule or regulation of any court or governmental agency
having jurisdiction over the Company, any of the Named
Subsidiaries or their property. Except as set forth in the
Final Prospectus or as required by the Securities Act, the
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Exchange Act and applicable state securities laws, no consent,
authorization or order of, or filing or registration with, any
court or governmental agency is required for the execution,
deliver and performance of this Agreement or the Deposit
Agreement.
(j) The Company and each of the Named Subsidiaries
have been duly organized, are validly existing and in good
standing under the laws of their respective jurisdictions of
incorporation, are duly qualified to do business and in good
standing as foreign corporations and are fully registered as a
broker-dealer, broker, dealer or investment advisor, as the
case may be, in each jurisdiction in which their respective
ownership of property or the conduct of their respective
businesses requires such qualification or registration and in
which the failure to qualify or register would be reasonably
likely, individually or in the aggregate, to have a material
adverse effect on the business, condition or properties of the
Company and its subsidiaries taken as a whole. Each of the
Company and its Named Subsidiaries holds all material
licenses, permits, and certificates from governmental
authorities necessary for the conduct of its business and
owns, or possesses adequate rights to use, all material rights
necessary for the conduct of such business and has not
received any notice of conflict with the asserted rights of
others in respect thereof; and each of the Company and its
Named Subsidiaries has the corporate power and authority
necessary to own or hold its properties and to conduct the
businesses in which it is engaged. Except as may be disclosed
in the Registration Statement and the Final Prospectus, all
outstanding shares of capital stock of the Named Subsidiaries
are owned by the Company, directly or indirectly through
subsidiaries, free and clear of any lien, pledge and
encumbrance or any claim of any third party and are duly
authorized, validly issued and outstanding, fully paid and
non-assessable.
(k) Except as described in the Registration Statement
and the Final Prospectus, there is no material litigation or
governmental proceeding pending or, to the knowledge of the
Company, threatened against the Company or any of its
subsidiaries which might reasonably be expected to result in
any material adverse change in the business, properties,
financial condition or results of operations of the Company
and its subsidiaries taken as a whole or which is required
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to be disclosed in the Registration Statement and the Final
Prospectus.
(l) The certificate delivered pursuant to paragraph
(f) of Section 6 hereof and all other documents delivered by
the Company or its representatives in connection with the
issuance and sale of the Shares and the Depositary Shares were
on the dates on which they were delivered, or will be on the
dates on which they are to be delivered, in all material
respects true and complete.
2. SALE AND PURCHASE OF THE SHARES. The Company agrees to sell
to each Underwriter, and each Underwriter, on the basis of the representations,
warranties and agreements herein contained, but subject to the terms and
conditions herein stated, agrees to purchase from the Company the number of
Depositary Shares in respect of Firm Shares set forth opposite the name of
Underwriter in Schedule II hereto. The obligations of the Underwriters under
this Agreement are several and not joint.
In addition, the Company grants to the Underwriters an option
to purchase up to an additional number of Option Shares indicated in Schedule I
hereto. Such option is granted solely for the purpose of covering
over-allotments in the sale of Firm Shares and is exercisable as provided in
Section 3 hereof. Option Shares shall be purchased severally for the account of
the Underwriters in proportion to the number of Depositary Shares in respect of
Firm Shares set forth opposite the name of such Underwriters in Schedule II
hereto. The respective purchase obligations of each Underwriter with respect to
the Option Shares shall be adjusted by the Representatives so that no
Underwriter shall be obligated to purchase Option Shares other than in 10 share
amounts and integral multiples thereof. The price of both the Firm Shares and
any Option Shares shall be the price per share indicated in Schedule I hereto.
3. DELIVERY AND PAYMENT. Delivery by the Company of the Firm
Shares to the Representatives for the respective accounts of the several
Underwriters and payment by the Underwriters therefor by certified or official
bank check or checks payable in, or by wire transfer of, immediately available
(federal) funds to or upon the order of the Company shall take place at the
office, on the date and at the time specified in Schedule I hereto, which date
and time may be postponed by agreement between the Representatives and the
Company or as provided in Section 9 hereof (such date and time of delivery and
payment for the Firm Shares being herein called the "First Delivery Date").
The certificates representing the Firm Shares will be
delivered by the Representatives to, and deposited with, the
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Depositary against delivery of Depositary Receipts representing Depositary
Shares issued in respect of such Firm Shares. Such Depositary Receipts shall be
issued in such denominations and registered in such names as the Representatives
shall request, and will be made available for checking and packaging at the
above office of the Company at least twenty-four hours prior to the First
Delivery Date.
At any time on or before the twentieth day after the date as
of this Agreement, the option granted in Section 2 may be exercised by written
notice being given to the Company by the Representatives. Such notice shall set
forth the aggregate number of Depositary Receipts in respect of such Option
Shares as to which the option is being exercised, the names in which the
Depositary Receipts in respect of such Option Shares are to be registered, the
denominations in which the Option Shares are to be issued and the date and time,
as determined by the Representatives, when the Option Shares are to be delivered
provided, however, that this date and time shall not be earlier than the First
Delivery Date nor earlier than the second business day after the date on which
the option shall have been exercised nor later than the fifth business day after
the date on which the option shall have been exercised. The date and time the
Option Shares are delivered are sometimes referred to as the "Second Delivery
Date" and the First Delivery Date and the Second Delivery Date are sometimes
referred to as a "Delivery Date".
Delivery by the Company of the Option Shares to the
Representatives for the respective accounts of the several Underwriters and
payment by the Underwriters therefor by certified or official bank check or
checks payable in, or by wire transfer of, immediately available (federal) funds
to or upon the order of the Company shall take place at the office and at the
time specified in Schedule I hereto, on the Second Delivery Date, which date and
time may be postponed by agreement between the Representatives and the Company
or as provided in Section 9 hereof.
The certificates representing the Option Shares will be
delivered by the Representatives to, and deposited with, the Depositary against
delivery of Depositary Receipts representing Depositary Shares issued in respect
of such Option Shares. Such Depositary Receipts shall be issued in such
denominations and registered in such names as the Representatives shall request,
and will be made available for checking and packaging at the above office of the
Company at least twenty-four hours prior to the Second Delivery Date.
4. OFFERING BY UNDERWRITERS. The Company hereby
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confirms that the Underwriters and dealers have been authorized to distribute or
cause to be distributed any Interim Prospectus and are authorized to distribute
the Final Prospectus (as from time to time amended or supplemented if the
Company furnishes amendments or supplements thereto to the Underwriters). The
Representatives agree that, as soon as the Representatives believe the offering
of the Depositary Shares has been terminated, the Representatives will so advise
the Company.
5. AGREEMENTS. The Company agrees with the several
Underwriters that:
(a) The Company will cause the Final Prospectus to be filed
with the Commission pursuant to Rule 424 not later than 10:00 a.m., New
York City time, on the business day following the date of this
Agreement and will promptly advise the Representatives (A) when the
Final Prospectus shall have been filed with the Commission pursuant to
Rule 424, (B) when any amendment to the Registration Statement relating
to the Shares and the Depositary Shares shall have become effective,
(C) of any request by the Commission for any amendment of the
Registration Statement, the Final Prospectus, the Basic Prospectus or
any Interim Prospectus, or for any additional information, (D) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceedings for that purpose and (E) of the receipt
by the Company of any notification with respect to the suspension of
the qualification of the Shares and the Depositary Shares for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose. After the date of this Agreement and prior to the
termination of the offering of the Shares and the Depositary Shares,
the Company will not file any amendment of the Registration Statement
or amendment or supplement to the Final Prospectus (except an amendment
to the Final Prospectus that is deemed to be incorporated by reference
in the Final Prospectus pursuant to Item 12 of Form S-3) without the
consent of the Representatives and will use its best efforts to prevent
the issuance of any such stop order and, if issued, to obtain as soon
as possible the withdrawal thereof. Prior to receipt of the advice to
be given by the Representatives pursuant to Section 4, the Company will
not file any document that would be deemed to be incorporated by
reference in the Final Prospectus pursuant to Item 12 of Form S-3
without delivering to the Representatives a copy of the document
proposed to be so filed, such delivery to be made at least twenty-four
hours prior to such filing, and the Company will consult with the
Representatives as to any comments which the Representatives make in a
timely manner with respect to the document so delivered.
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(b) Subject to the last sentence of the immediately preceding
paragraph, if, at any time during which a prospectus relating to the
Shares and the Depositary Shares is required to be delivered under the
Securities Act, any event occurs as a result of which the Final
Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
shall be necessary at any time to amend or supplement the Final
Prospectus to comply with the Securities Act or the Rules, the Company
promptly will prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an
amendment which will effect such compliance and will use its best
efforts to cause any amendment of the Registration Statement containing
an amended Final Prospectus to be made effective as soon as possible.
(c) The Company will deliver to the Representatives, without
charge, (i) signed copies of the Registration Statement and of any
amendments thereto (including all exhibits filed with, or incorporated
by reference in, any such document) and (ii) as many conformed copies
of the Registration Statement and of any amendments thereto which shall
become effective on or before the First Delivery Date (excluding
exhibits) as the Representatives may reasonably request.
(d) During such period as a prospectus is required by law to
be delivered by an Underwriter or dealer, the Company will deliver,
without charge to the Representatives and to Underwriters and dealers,
at such office or offices as the Representatives may designate, as many
copies of the Basic Prospectus, any Interim Prospectus and the Final
Prospectus as the Representatives may reasonably request.
(e) The Company will make generally available to its security
holders and to the Representatives as soon as practicable an earnings
statement (which need not be audited) of the Company and its
subsidiaries, covering a period of at least 12 months beginning after
the date the Final Prospectus is filed with the Commission pursuant to
Rule 424, which will satisfy the provisions of Section 11(a) of the
Securities Act.
(f) The Company will furnish such information, execute such
instruments and take such actions as may be required to qualify the
Shares and the Depositary Shares for offering
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and sale under the laws of such jurisdictions as the Representatives
may designate and will maintain such qualifications in effect so long
as required for the distribution of the Shares and the Depositary
Shares; provided, however, that the Company shall not be required to
qualify to do business in any jurisdiction where it is not now so
qualified or to take any action which would subject it to general or
unlimited service of process in any jurisdiction where it is not now so
subject.
(g) So long as any Depositary Shares are outstanding, the
Company will furnish or cause to be furnished to the Representatives
copies of all annual reports and current reports filed with the
Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as
may be designated by the Commission.
(h) If the Company has applied for the listing of the Shares
or Depositary Shares on the New York Stock Exchange Inc. (the "NYSE"),
it will use its best efforts to cause such listing to be approved as
soon as possible.
(i) For a period beginning at the time of execution of this
Agreement and ending on the later of the business day following either
the Second Delivery Date or following the date on which any price
restrictions on the sale of the Shares or the Depositary Shares are
terminated, without the prior consent of the Representatives, the
Company will not offer, sell, contract to sell or otherwise dispose of
any shares of Preferred Stock (other than the Shares and the Depositary
Shares), or sell or grant options, rights or warrants with respect to
any shares of Preferred Stock covered by the Registration Statement or
any other registration statement filed under the Securities Act.
(j) The Company will use its best efforts to do and perform
all things to be done and performed hereunder prior to each Delivery
Date and to satisfy all conditions precedent to the delivery of the
Shares and the Depositary Shares.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters to purchase the Shares shall be subject to the
accuracy in all material respects of the representations and warranties on the
part of the Company contained herein as of the date hereof and each Delivery
Date, to the accuracy of any material statements made in any certificates,
opinions, affidavits, written statements or letters furnished to the
Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel")
pursuant to this Section 6, to the performance by the Company of its respective
obligations hereunder and to the following additional conditions:
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(a) The Final Prospectus shall have been filed with the
Commission pursuant to Rule 424 not later than 10:00 a.m., New York
City time, on the business day following the date of this Agreement or
such later date and time as shall be consented to in writing by the
Representatives.
(b) No order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall be in effect and no
proceedings for such purpose shall be pending before or threatened by
the Commission and any requests for additional information on the part
of the Commission (to be included in the Registration Statement or the
Final Prospectus or otherwise) shall have been complied with to the
reasonable satisfaction of the Representatives.
(c) Since the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, there
shall not have been any change or decrease specified in the letter
referred to in paragraph (g) of this Section 6 which, in the judgment
of the Representatives, makes it impracticable or inadvisable to
proceed with the offering and delivery of the Depositary Shares
representing such Shares as contemplated by the Registration Statement
and the Final Prospectus.
(d) The Company shall have furnished to the Representatives
the opinion of a Deputy General Counsel or the Chief Legal Officer for
the Company, dated the day of each Delivery Date to the effect that:
(i) The Company has been duly organized and is
validly existing and in good standing under the laws of the
jurisdiction of its incorporation with all requisite corporate
power and authority to own and operate its properties and to
conduct its business as described in the Final Prospectus.
(ii) The Deposit Agreement, the Shares, the
Depositary Shares and the Depositary Receipts conform in all
material respects to the descriptions thereof contained in the
Final Prospectus.
(iii) The Company has an authorized capitalization as
set forth in the Final Prospectus, and all of the issued
shares of capital stock of the Company (including the Shares
being delivered on such Delivery Date) have been duly and
validly authorized and issued, are fully paid and
non-assessable and
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conform to the description thereof contained in the
Prospectus; the Depositary Shares representing the Shares
delivered on such Delivery Date have been duly and validly
authorized by the Company; and assuming the due execution by
the Depositary of the Deposit Agreement and the due execution
by the Depositary and, if required by the Deposit Agreement,
the Registrar of the Depositary Receipts in accordance with
the terms of the Deposit Agreement and upon the deposit by or
on behalf of the Underwriters of the Shares with the
Depositary pursuant to the Deposit Agreement, such Depositary
Shares will represent legal and valid interests in the Shares
delivered on such Delivery Date and the Depositary Receipts
will constitute valid evidence of such interests in such
Shares and will be entitled to the benefits of the Deposit
Agreement.
(iv) There are no preemptive or other rights to
subscribe for or to purchase, nor any restriction upon the
voting or transfer of, any Shares pursuant to the Company's
charter or by-laws or any agreement or other instrument known
to such counsel.
(v) No consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation of the transactions contemplated in this
Agreement or the compliance by the Company with the provisions
of the Deposit Agreement, except for such consents, approvals,
authorizations or orders as have been obtained under the
Securities Act and such as may be required under the Exchange
Act and the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Shares and the
Depositary Shares by the Underwriters.
(vi) Such counsel does not know of any contracts or
other documents which are required to be filed as exhibits to
the Registration Statement by the Securities Act or by the
Rules which have not been filed as exhibits to the
Registration Statement or incorporated therein by reference as
permitted by the Rules.
(vii) To the best of such counsel's knowledge,
neither the Company nor any of its Named Subsidiaries is in
violation of its corporate charter or by-laws, or in default
under any material agreement, indenture or instrument known to
such counsel, the effect of which violation or default would
be material to the Company and its subsidiaries taken as a
whole.
(viii) This Agreement and the Deposit
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Agreement have been duly authorized, executed and delivered by
the Company; the execution, delivery and performance of this
Agreement and the Deposit Agreement by the Company will not
constitute a breach of, or result in the creation or
imposition of any material lien, charge or encumbrance upon
any of the assets of the Company or any of its Named
Subsidiaries pursuant to the terms of, or constitute a default
under, any material agreement, indenture or instrument known
to such counsel and to which the Company or any of its Named
Subsidiaries is a party of is bound, or result in a violation
of the corporate charter or by-laws of the Company or any of
its Named Subsidiaries or any order, rule or regulation known
to such counsel of any court or governmental agency having
jurisdiction over the Company, any of its Named Subsidiaries
or any of their respective properties, the effect of which
would be material to the Company and its subsidiaries taken as
a whole.
(ix) Assuming due authorization, execution and
delivery by the Depositary, the Deposit Agreement constitutes
a valid and binding agreement, enforceable in accordance with
its terms subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in
a proceeding in equity or at law) and by an implied covenant
of good faith and fair dealing.
(x) The Registration Statement has become effective
under the Securities Act, and, to the best of the knowledge of
such counsel, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceeding
for that purpose is pending or threatened by the Commission.
(xi) The Registration Statement, the Final Prospectus
and each amendment thereof or supplement thereto (except that
no opinion need be expressed as to the financial statements or
other financial or statistical data included or incorporated
by reference therein) comply as to form in all material
respects with the requirements of the Securities Act and the
Rules.
(xii) If the Shares or the Depositary Shares, as the
case may be, are to be listed on the NYSE, authorization
therefor has been given, subject to official notice of
issuance and evidence of satisfactory distribution, or the
Company has filed a
16
preliminary listing application and all required supporting
documents with respect to the Shares or the Depositary Shares,
as the case may be, with the NYSE, and such counsel has no
reason to believe that the Shares or the Depositary Shares, as
the case may be, will not be authorized for listing, subject
to official notice of issuance and evidence of satisfactory
distribution.
(xiii) Each of the Named Subsidiaries is a
duly organized and validly existing corporation in good
standing under the laws of the jurisdiction of its
incorporation with all requisite corporate power and authority
to own and operate its properties and to conduct its business
as described in the Final Prospectus. Each of the Company and
its Named Subsidiaries is duly qualified to do business as a
foreign corporation, is in good standing and is duly
registered as a broker-dealer, broker, dealer or investment
advisor, as the case may be, in each jurisdiction in which the
nature of the business conducted by it or in which the
ownership or holding by lease of the properties owned or held
by it require such qualification or registration and where the
failure to so qualify or register would have a material
adverse effect on the Company and its subsidiaries taken as a
whole.
(xiv) All the outstanding shares of capital stock of
each of the Company's Named Subsidiaries have been duly and
validly authorized and issued and are fully paid and
non-assessable and, except for directors' qualifying shares,
are owned by the Company or a subsidiary of the Company free
and clear of any claims, liens, encumbrances and security
interests.
(xv) Such counsel does not know of any litigation or
any governmental proceeding pending or threatened against the
Company or any of its subsidiaries which would affect the
subject matter of this Agreement or the Deposit Agreement or
is required to be disclosed in the Final Prospectus which is
not disclosed and correctly summarized therein.
Such opinion shall also contain a statement that although such
counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Final
17
Prospectus (except as to those matters stated in paragraph (ii) of such
opinion), such counsel has no reason to believe that (i) the Registration
Statement, as of its effective date, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading or
(ii) the Final Prospectus contains any untrue statement of a material fact or
omits to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (except that no opinion need be expressed as to the financial
statements or other financial or statistical data included or incorporated by
reference therein). In rendering such opinion, such counsel may rely upon
opinions of local counsel satisfactory to the Representatives for matters not
governed by New York law and may rely as to matters of fact, to the extent such
counsel deems proper, upon certificates or affidavits of officers of the Company
and public officials.
(e) The Representatives shall have received from Underwriters'
Counsel such opinion or opinions, dated the day of such Delivery Date, with
respect to the issuance and sale of the Shares and the Depositary Shares, the
Depositary Agreement, the Registration Statement, the Final Prospectus and other
related matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a
certificate of its Chief Executive Officer, its President or any Managing
Director or Vice President and its Chief Financial Officer or its Treasurer,
dated the day of each Delivery Date, to the effect that, to the best of their
knowledge after due inquiry:
(i) The representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of such Delivery Date with the same effect
as if made on such Delivery Date, and the Company has complied
with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to such
Delivery Date.
(ii) No stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or threatened.
(iii) (x) The Registration Statement does not contain
any untrue statement of a material fact or omit to state any
material
18
fact required to be stated therein or necessary to make the
statements therein not misleading, (y) the Final Prospectus
does not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, and (z) since the effective date of the
Registration Statement there has not occurred any event
required to be set forth in an amended or supplemented
prospectus which has not been so set forth.
(g) At each Delivery Date, a nationally recognized firm of
independent public accountants shall have furnished to the Representatives a
letter, dated the day of such Delivery Date, in form and substance satisfactory
to the Representatives, confirming that they are independent auditors with
respect to the Company within the meaning of the Securities Act and stating in
effect that:
(i) In their opinion, the consolidated financial
statements of the Company and its subsidiaries, and the
supporting schedules, included in the Registration Statement
and the Final Prospectus and audited by them comply as to form
in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and
the related published rules and regulations thereunder.
(ii) On the basis of a reading of the unaudited
consolidated financial statements of the Company and its
subsidiaries, if any, included in the Registration Statement
and the Final Prospectus and of the latest unaudited
consolidated financial statements made available by the
Company and Lehman, carrying out certain specified procedures
(but not an audit in accordance with generally accepted
auditing standards),
a reading of the minutes of the meetings of the directors of the Company and
Lehman, and inquiries of certain officials of the Company and its subsidiaries,
who have responsibility for financial and accounting matters of the Company and
its subsidiaries, as to transactions and events subsequent to the date of the
most recent audited consolidated financial statements included in the
Registration Statement and the Final Prospectus, nothing came to their attention
that caused them to believe that:
(A) any material modifications should be made to the
unaudited consolidated financial statements of the
19
Company and its subsidiaries, if any, included in the
Registration Statement and the Final Prospectus for them to be
in conformity with generally accepted accounting principles;
and such financial statements do not comply as to form in all
material respects with the applicable accounting requirements
of the Securities Act and the published instructions, rules
and regulations thereunder.
(B) the unaudited capsule information of the Company
and its subsidiaries, if any, included in the Registration
Statement and the Final Prospectus does not agree with the
amounts set forth in the unaudited consolidated financial
statements of the Company from which it was derived or was not
determined on a basis substantially consistent with that of
the corresponding financial information in the latest audited
financial statements of the Company included in the
Registration Statement and the Final Prospectus.
(C) (I) as of the latest date as of which the Company
and its subsidiaries have monthly financial statements, there
was any decrease in the capital stock, additional paid-in
capital or retained earnings, or increase in long-term
indebtedness of the Company and its subsidiaries, as compared
with the amounts shown in the most recent consolidated
statement of financial condition of the Company and its
subsidiaries included in the Registration Statement and the
Final Prospectus, (II) with respect to the period subsequent
to the date of the most recent financial statements included
in the Registration Statement and the Final Prospectus and
extending through the latest date as of which the Company and
its subsidiaries have monthly financial statements, there was
a consolidated net loss or (III) with respect to the amounts
of net capital or excess net capital of Lehman determined
pursuant to Commission Rule 15c3-1 and shown in the most
recent financial statement of Lehman filed pursuant to
Commission Rule 17a-5, there has been any decrease in such
amounts as compared with the amounts shown in the most recent
consolidated financial statements included in the Registration
Statement and the Final Prospectus.
(D) as of a specified date not more than three
business days prior to the date of the letter, there was any
decrease in the capital stock or additional paid-in capital,
or increase in long-term indebtedness of the Company and its
subsidiaries, as compared with the amounts shown in the most
recent consolidated statement of financial condition of the
Company and its subsidiaries included in the Registration
Statement and
20
the Final Prospectus;
except in all instances for increases or decreases set forth in such letter, in
which case the letter shall be accompanied by an explanation by the Company as
to the significance thereof, unless said explanation is not deemed necessary by
the Representatives.
(iii) If pro forma financial statements are included in the
Registration Statement or the Final Prospectus, (x) they have read such
pro forma financial statements, (y) they have made inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters of the Company as to the basis for their
determination of the pro forma adjustments and whether such pro forma
financial statements comply as to form in all material respects with
the applicable accounting requirements of Rule 11-02 of Regulation S-X
and (z) they have proved the arithmetic accuracy of the application of
the pro forma adjustments to the historical amounts; and as a result
thereof, nothing came to their attention that caused them to believe
that such pro forma financial statements do not so comply with Rule
11-02 of Regulation S-X and that such pro forma adjustments have not
been properly applied to the historical amounts in the compilation of
those statements.
(iv) They have performed certain other specified procedures as
a result of which they determined that certain information of an
accounting, financial or statistical nature (which is expressed in
dollars, or percentages derived from dollar amounts, and has been
obtained from the general accounting records of the Company) set forth
in the Registration Statement, as amended, and the Final Prospectus, as
amended or supplemented, and in Exhibit 12 to the Registration
Statement, including specified information, if any, included or
incorporated from the Company's Annual Report on Form 10-K incorporated
therein or specified information, if any, included or incorporated from
any of the Company's Quarterly Reports on Form 10-Q or its Current
Reports on Form 8-K incorporated therein, agrees with the accounting
records of the Company and its subsidiaries or computations made
therefrom, excluding any questions of legal interpretation.
(h) Subsequent to the execution of this Agreement, there shall
not have been any decrease in the ratings of any of the Company's debt
securities by ▇▇▇▇▇'▇ Investors Service, Inc. or Standard & Poor's Corporation.
21
Prior to each Delivery Date, the Company shall have furnished
to the Representatives such further information, certificates and documents as
the Representatives or Underwriters' Counsel may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled when and as required by this Agreement, or if any of the
certificates or opinions furnished to the Representatives or Underwriters'
Counsel pursuant to this Section 6 shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and to
Underwriters' Counsel, this Agreement and all obligations of the Underwriters
hereunder may be cancelled at, or at any time prior to, each Delivery Date by
the Representatives. Notice of such cancellation shall be given to the Company
in writing, or by telegraph confirmed in writing.
7. EXPENSES. (a) Whether or not the transactions contemplated
in this Agreement are consummated or this Agreement is terminated, the Company
will pay all costs and expenses incident to the performance of the obligations
of the Company hereunder, including, without limiting the generality of the
foregoing, all costs, taxes and expenses incident to the issuance, sale and
delivery of the Shares to the Underwriters, all fees and expenses of the
Company's counsel and accountants, all costs and expenses incident to the
preparing, printing and filing of the Registration Statement (including all
exhibits thereto), any Interim Prospectus, the Basic Prospectus, the Final
Prospectus and any amendments thereof or supplements thereto, and the rating of
the Shares or the Depositary Shares by one or more rating agencies, all costs
and expenses (including fees of Underwriters' Counsel and their disbursements)
incurred in connection with blue sky qualifications, advising on the legality of
the Shares or the Depositary Shares for investment, the filing requirements, if
any, of the National Association of Securities Dealers, Inc. in connection with
its review of corporate financings, the fee for listing the Shares or the
Depositary Shares on the NYSE, all fees of the Depositary, for all taxes in
connection with the deposit of the Shares with the Depositary and the issuance
of the Depositary Receipts as provided in Section 3 hereof and all costs and
expenses of the printing and distribution of all documents in connection with
such offering. Except as provided in this Section 7, the Company will have no
responsibility to the Underwriters for the Underwriters' own costs and expenses,
including the fees of Underwriters' Counsel and any advertising expenses in
connection with any offer the Underwriters may make.
(b) If the sale of the Shares provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied or because of any refusal, inability
or failure on the part of the
22
Company to perform any agreement herein or comply with any provision hereof, the
Company will, subject to demand by the Representatives, reimburse the
Underwriters for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Shares.
8. INDEMNIFICATION. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person who controls such Underwriter
within the meaning of the Securities Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Securities Act, the Exchange Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, as originally filed or in
any amendment thereof, or in any Interim Prospectus, the Basic Prospectus or the
Final Prospectus, or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such indemnified party for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that (i) the Company will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company as herein stated by the Representatives on
behalf of any Underwriter specifically for use in connection with the
preparation thereof, and (ii) such indemnity with respect to the Basic
Prospectus or any Interim Prospectus shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) from whom the person
asserting any such loss, claim, damage or liability purchased the Depositary
Shares which are the subject thereof if such person did not receive a copy of
the Final Prospectus at or prior to the confirmation of the sale of such
Depositary Shares to such person in any case where such delivery is required by
the Securities Act and the untrue statement or omission of a material fact
contained in the Basic Prospectus or any Interim Prospectus was corrected in the
Final Prospectus, unless such failure to deliver the Final Prospectus was a
result of noncompliance by the Company with Section 5(d) hereof. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
23
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person, if any, who controls the Company within
the meaning of the Securities Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or other federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Basic Prospectus, any Interim
Prospectus or the Final Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or the alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only
to the extent, that the same was made therein in reliance upon and in conformity
with written information furnished to the Company as herein stated by the
Representatives on behalf of such Underwriter specifically for use in the
preparation thereof, and agrees to reimburse each such indemnified party for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action.
This indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. The statements set forth in the last paragraph
of the cover page and under the heading "Underwriting" in the Final Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in the Registration Statement and the Final
Prospectus, as the case may be, and you, as the Representatives, confirm that
such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 8. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying party and either
24
(i) the indemnifying party or parties and the indemnified party or parties
mutually agree or (ii) representation of both the indemnifying party or parties
and the indemnified party or parties by the same counsel is inappropriate under
applicable standards of professional conduct due to actual or potential
differing interests between them, the indemnified party or parties shall have
the right to select separate counsel to assume such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
counsel in connection with the assumption of legal defenses in accordance with
the proviso to the next preceding sentence (it being understood, however, that
the indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives in the case of subparagraph
(a) representing the indemnified parties under subparagraph (a), as the case may
be, who are parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in subparagraph (a) of
this Section 8 is due in accordance with its terms but is for any reason held by
a court to be unavailable from the Company on grounds of policy or other similar
grounds, the Company and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same) to which
the Company and one or more of the Underwriters may be subject in such
proportion so that the Underwriters are responsible for that portion represented
by the percentage that the underwriting discounts appearing on the cover page of
the Final Prospectus bear to the public offering prices appearing thereon and
the Company is responsible for the balance; provided, however, that (i) in no
case shall any Underwriter (except as may be provided in any agreement among
underwriters) be responsible for any amount in excess of the underwriting
discounts applicable to the Shares purchased by such Underwriter hereunder and
(ii) no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent
25
misrepresentation. For purposes of this Section 8, each person who controls an
Underwriter within the meaning of the Securities Act shall have the same rights
to contribution as such Underwriter, and each person who controls the Company
within the meaning of either the Securities Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to clauses (i) and (ii) of this subparagraph (d).
Any party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this subparagraph (d), notify such party or parties from whom contribution
may be sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this
subparagraph (d).
9. DEFAULT BY AN UNDERWRITER. If, on either Delivery Date, any
one or more Underwriters shall fail to purchase and pay for all of the Shares
agreed to be purchased by such Underwriter or Underwriters hereunder and such
failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be
obligated severally to take up and pay for (in the respective proportions which
the number of Depositary Shares in respect of Firm Shares set forth opposite
their names in Schedule II hereto bear to the aggregate number of Depositary
Shares in respect of Firm Shares set opposite the names of the remaining
Underwriters) the Shares which the defaulting Underwriter or Underwriters agreed
but failed to purchase on such Delivery Date; provided, however, that in the
event that the aggregate number of Shares which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such Delivery Date shall exceed
10% of the aggregate number of the Shares, the remaining Underwriters shall have
the right to purchase all, but shall not be under any obligation to purchase
any, of the Shares, and if such non-defaulting Underwriters do not purchase all
the Shares, this Agreement (or, with respect to the Second Delivery Date, the
obligation of the Underwriters to purchase, and of the Company to sell, the
Option Shares) will terminate without liability to any non-defaulting
Underwriters or the Company. In the event of a default by any Underwriter as set
forth in this Section 9, the particular Delivery Date shall be postponed for
such period, not exceeding seven days, as the Representatives shall determine in
order that the required changes in the Registration Statement and the Final
Prospectus or in any other documents or arrangements may be effected. Nothing
herein contained shall relieve any
26
defaulting Underwriter of its liability, if any, to the Company and any
non-defaulting Underwriter for damages occasioned by its default hereunder.
10. TERMINATION. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company at or prior to delivery of and payment for all the Firm Shares,
if, prior to such time (i) trading in securities generally on the NYSE or the
over-the- counter market shall have been suspended or limited or minimum prices
shall have been established on the NYSE or the over-the-counter market, (ii) a
banking moratorium shall have been declared either by federal or New York State
authorities, (iii) any new restriction materially affecting the distribution of
the Shares shall have become effective or trading in any securities of the
Company shall have been suspended or halted by any national securities exchange,
the National Association of Securities Dealers, Inc. or the Commission, (iv) the
United States becomes engaged in hostilities or there is an escalation in
hostilities involving the United States or there is a declaration of a national
emergency or war by the United States, or (v) there shall have been such a
material adverse change in national or international political, financial or
economic conditions, national or international equity markets or currency
exchange rates or controls as to make it, in the judgment of the
Representatives, inadvisable or impracticable to proceed with the payment for
and delivery of the Shares.
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers (as such officers) and of the
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect regardless of any investigation made by or on behalf of any
Underwriter or the Company or any of its officers or directors or any
controlling person within the meaning of the Securities Act, and will survive
delivery of the payment for the Shares.
12. NOTICES. All communications hereunder will be in writing,
and, if sent to the Representatives will be mailed, delivered, telegraphed or
telexed and confirmed to them, at the address specified in Schedule I hereto;
or, if sent to the Company will be mailed, delivered, telegraphed or telexed and
confirmed to it at 3 World Financial Center, New York, New York 10285,
Attention: Chief Financial Officer.
13. SUCCESSORS. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their successors and, to the extent
and only to the extent stated in Section 8 hereof, the officers and directors
and controlling
27
persons referred to in Section 8 hereof, and except as provided in Section 8
hereof, no person other than the parties hereto and their respective successors
will have any right or obligation hereunder.
14. APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
28
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
By:
------------------------------------
Title:
The foregoing Agreement is hereby confirmed
and accepted as of the date first above
written.
▇▇▇▇▇▇ BROTHERS INC.
By:
------------------------------
------------------------------
Title:
Acting on behalf of the Representatives
named in Schedule I annexed hereto and the
several Underwriters named in Schedule II
annexed hereto.
SCHEDULE I
Date of Underwriting Agreement:
Registration Statement No. 333-
Representative and Address: ▇▇▇▇▇▇ Brothers Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Description of Shares:
Title:
Number of shares of Firm Shares:
Maximum number of shares of Option
Shares:
Price per share:
Time of payment of dividends:
Sinking fund provisions:
Redemption provisions:
Repayment provisions:
Listing:
Price to Public:
First Delivery Date, Time and Location:
Date:
Time: 10:00 A.M., New York City time
Location: ▇▇▇▇▇▇ Brothers Holdings Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
SCHEDULE II
NUMBER OF
DEPOSITARY SHARES
IN RESPECT OF FIRM
SHARES PURCHASED
----------------
UNDERWRITERS
------------
▇▇▇▇▇▇ Brothers Inc
-------------------
TOTAL
-------------------
-------------------