EXHIBIT 1.1
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▇▇▇▇▇▇▇ ▇▇▇▇▇ DEPOSITOR, INC.
(a Delaware corporation)
FORM OF UNDERWRITING AGREEMENT FOR
PPLUS AND INDEXPLUS TRUST CERTIFICATES
Dated: [ ], 2006
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Table of Contents
SECTION 1. Representations and Warranties......................................3
(a) Representations and Warranties by the Company.......................3
(1) Registration Statement, Prospectus and Disclosure at Time
of Sale.....................................................3
(2) Incorporated Documents........................................5
(3) No Material Adverse Change in Business........................5
(b) Officer's Certificates.............................................6
(c) Representations and Warranties by the Underwriters.................6
(d) Each Underwriter represents and warrants to the Company,
as of each Representation Date, as follows:......................6
(1) In relation to each Member State of the European
Economic Area which has implemented the Prospectus
Directive (each, a "Relevant Member State"), each
Underwriter represents and agrees that with effect
from and including the date on which the Prospectus
Directive is implemented in that Relevant Member State
(the "Relevant Implementation Date") it has not made
and will not make an offer of Underwritten Securities
to the public in that Relevant Member State except that
it may, with effect from and including the Relevant
Implementation Date, make an offer of Underwritten
Securities to the public in that Relevant Member State
at any time:..................................................6
(2) Each Underwriter represents and agrees that:..................7
SECTION 2. Sale and Delivery to Underwriters; Closing..........................7
(a) Underwritten Securities............................................7
(b) Payment............................................................7
(c) Denominations; Registration........................................8
SECTION 3. Covenants of the Company...........................................8
(a) Compliance with Securities Regulations and Commission
Requests; Payment of Filing Fees................................8
(b) Filing of Amendments and Exchange Act Documents....................9
(c) Delivery of Registration Statements................................9
(d) Delivery of Prospectuses...........................................9
(e) Continued Compliance with Securities Laws..........................9
(f) Blue Sky Qualifications...........................................10
(g) Earnings Statement................................................11
(h) Reporting Requirements............................................11
(i) Listing...........................................................11
(j) Issuer Free Writing Prospectuses..................................11
SECTION 4. Payment of Expenses...............................................11
(a) Expenses..........................................................11
(b) Termination of Agreement..........................................12
SECTION 5. Conditions of Underwriters' Obligations...........................12
(a) Effectiveness of Registration Statement; Filing of Prospectus.....12
(b) Opinion of Counsel for Company....................................13
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(c) Opinion of Counsel for Underwriters...............................13
(d) Officers' Certificate.............................................13
(e) Ratings...........................................................13
(f) Approval of Listing...............................................14
(g) No Objection......................................................14
(h) Additional Documents..............................................14
SECTION 6. Indemnification...................................................14
(a) Indemnification of Underwriters...................................14
(b) Indemnification of Company, Directors and Officers................15
(c) Documentary Stamp or Similar Issue Tax Indemnification............16
(d) Actions against Parties; Notification.............................16
(e) Settlement without Consent if Failure to Reimburse................16
SECTION 7. Contribution......................................................17
SECTION 8. Representations, Warranties and Agreements to Survive Delivery....18
SECTION 9. Termination.......................................................18
(a) Underwriting Agreement............................................18
(b) Terms Agreement...................................................18
(c) Liabilities.......................................................19
SECTION 10. Default by One or More of the Underwriters........................19
SECTION 11. Notices...........................................................21
SECTION 12. No Advisory or Fiduciary Relationship.............................21
SECTION 13. Integration.......................................................21
SECTION 14. Parties...........................................................21
SECTION 15. GOVERNING LAW.....................................................22
SECTION 16. Effect of Headings................................................23
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▇▇▇▇▇▇▇ ▇▇▇▇▇ DEPOSITOR, INC.
(a Delaware corporation)
PPLUS and INDEXPLUS Trust Certificates
UNDERWRITING AGREEMENT
o, 200X
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Depositor., Inc, a Delaware corporation (the "Company"),
proposes that The Bank of New York (the "Trustee") issue and sell (i) PPLUS
Trust Certificates or (ii) INDEXPLUS Trust Certificates, or any combination
thereof, as shall be designated by the Company from time to time in or pursuant
to one or more offerings on terms to be determined at the time of sale. The
PPLUS Trust Certificates and the INDEXPLUS Trust Certificates are collectively
referred to herein as the "Underwritten Securities".
The Underwritten Securities will be issued in one or more series (each, a
"Series") pursuant to the Standard Terms for Trust Agreements dated as of [o]
between the Company, as depositor and the Trustee (the "Standard Terms") and a
supplement dated as of the date of issuance of the related Series (each, a
"Series Supplement" and together with the Standard Terms, a "Trust Agreement")
and shall have the terms described in the Prospectus and the relevant prospectus
supplement, as such documents may be amended or supplemented from time to time.
The Standard Terms has been filed as an exhibit to the Registration Statement
(as defined below). Each Series will in the aggregate represent the entire
beneficial ownership interest in a publicly issued debt security, in the case of
PPLUS Trust Certificates, or a pool of such debt securities, in the case of
INDEXPLUS Trust Certificates (the "Underlying Securities"), together with any
other assets included for the purpose of assuring the servicing or timely
distribution of payments to holders of the Underwritten Securities, deposited by
the Company in a trust (the "Trust") for the benefit of the holders such Series.
Whenever the Company determines to make an offering of Underwritten
Securities through ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇
▇▇▇▇▇"), or through an underwriting syndicate managed by ▇▇▇▇▇▇▇ ▇▇▇▇▇ (in such
capacity, the "Representative"), the Company will enter into an agreement (each,
a "Terms Agreement") providing for the sale of such Underwritten Securities to,
and the purchase and offering thereof by, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and such other
underwriters, if any, selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Underwriters", which term
shall include ▇▇▇▇▇▇▇ ▇▇▇▇▇, whether acting as sole Underwriter or as a member
of an underwriting syndicate, as well as any Underwriter substituted pursuant to
Section 10 hereof). The Terms Agreement relating to each offering of
Underwritten Securities shall specify the aggregate stated amount, the aggregate
notional principal amount or the number, as the case may be, of Underwritten
Securities to be issued, the name of each Underwriter participating in such
offering (subject to substitution as provided in Section 10 hereof) and the name
of any Underwriter other ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ acting as co-manager in connection
with such offering, the aggregate principal amounts of Underwritten Securities
which each such Underwriter severally agrees to purchase, whether such offering
is on a fixed or variable price basis and, if on a fixed price basis, the
initial offering price, the price at which the Underwritten Securities are to be
purchased by the Underwriters, the form, time, date and place of delivery of and
payment for the Underwritten Securities and any other material variable terms of
the Underwritten Securities. The Terms Agreement, which shall be substantially
in the form of Exhibit A hereto, may take the form of an exchange of any
standard form of written communication (including facsimile) between the Company
and ▇▇▇▇▇▇▇ ▇▇▇▇▇, acting for itself and, if applicable, as Representative of
any other Underwriters. Each offering of Underwritten Securities through ▇▇▇▇▇▇▇
▇▇▇▇▇ as sole Underwriter or through an underwriting syndicate managed by the
Representative will be governed by this Underwriting Agreement, as supplemented
by the applicable Terms Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a shelf registration statement on Form S-3 (No. 333-132386),
including the related preliminary prospectus, which registration has been
declared effective by the Commission. Such registration statement covers the
registration of the Underwritten Securities under the Securities Act of 1933, as
amended (the "1933 Act"). Any information included in a prospectus filed in
accordance with the provisions of Rule 430B ("Rule 430B") of the rules and
regulations promulgated under the 1933 Act (the "1933 Act Regulations") and
paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations that was
omitted from such registration statement at the time it became effective but
that is deemed to be part of and included in such registration statement
pursuant to Rule 430B is referred to as "Rule 430B Information." The prospectus
forming part of the Registration Statement in the form first furnished or made
available to the Underwriters for use in connection with the offering of the
Underwritten Securities and any amendments thereto (the "Base Prospectus")
together with any preliminary prospectus supplement, including the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, in the form first furnished or made available that omitted Rule 430B
Information is herein called a "preliminary prospectus." Such registration
statement, at any given time, including the amendments thereto to such time, the
exhibits and any schedules thereto at such time, the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act at such
time and the documents otherwise deemed to be part thereof, or included therein
by 1933 Act Regulations, is herein called the "Registration Statement." The
Registration Statement at
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the time it originally became effective is herein called the "Original
Registration Statement." The Base Prospectus together with any final prospectus
supplement in the form first furnished or made available to the Underwriters for
use in connection with the offering of the Underwritten Securities, including
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act at the time first furnished or made available, is herein
called the "Prospectus". The Standard Terms in effect as of the date of this
Underwriting Agreement has been duly qualified under the Trust Indenture Act of
1939, as amended (the "1939 Act"). For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus, the
Prospectus or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
All references in this Underwriting Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" (or
other references of like import) in the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference or otherwise deemed by 1933 Act Regulations to be part of or included
in the Registration Statement, Prospectus or preliminary prospectus, as the case
may be; and all references in this Underwriting Agreement to amendments or
supplements to the Registration Statement, Prospectus or preliminary prospectus
shall be deemed to mean and include the filing of any document under the
Securities Exchange Act of 1934, as amended (the "1934 Act") which is
incorporated by reference in or otherwise deemed by 1933 Act Regulations to be a
part of or included in the Registration Statement, Prospectus or preliminary
prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to the Representative, as of the date hereof, as of
the time of each acceptance by the Company of an offer for the purchase of
Underwritten Securities (each such time being an "Applicable Time" and to
each Underwriter named in the applicable Terms Agreement, as of the date
thereof, the relevant Applicable Time and as of the relevant Closing Time
(as defined below) (in each case, a "Representation Date"), as follows:
(1) Registration Statement, Prospectus and Disclosure at Time
of Sale. The Original Registration Statement and any post-effective
amendments thereto have been declared effective by the Commission. No
stop order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the
part of the Commission for additional information has been complied
with. In addition, each relevant Trust Agreement in effect as of each
Representation Date has been duly qualified under the 1939 Act.
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At the respective times the Original Registration Statement and each
amendment thereto became effective, at each deemed effective date
pursuant to Rule 430B(f)(2) of the 1933 Act Regulations and at each
Representation Date, the Registration Statement complied and will
comply in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations, and did not 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. At the date of the Prospectus and at the
Closing Time the Prospectus and any amendments and supplements thereto
did not and 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 were made,
not misleading. The representations and warranties in this subsection
shall not apply to that part of the Registration Statement that
constitutes the Statement of Eligibility on Form T-1 (the "Form T-1")
under the 1939 Act of the relevant Trustee.
Each preliminary prospectus complied when filed with the Commission in
all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters
for use in connection with the offering of Underwritten Securities
will, at the time of such delivery, be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
As of an Applicable Time, neither (x) the Issuer General Use Free
Writing Prospectus(es) (as defined below) issued at or prior to the
Applicable Time (as defined below) and the Statutory Prospectus (as
defined below), all considered together (collectively, the "General
Disclosure Package"), nor (y) any individual Issuer Limited Use Free
Writing Prospectus, when considered together with the General
Disclosure Package, included any untrue statement of a material fact or
omitted 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.
As used in this subsection and elsewhere in this Agreement:
"Issuer Free Writing Prospectus" means any "issuer free writing
prospectus," as defined in Rule 433 of the 1933 Act Regulations ("Rule
433"), relating to the Underwritten Securities that (i) is required to
be filed with the Commission by the Company, (ii) is a "road show that
is a written communication" within the meaning of Rule 433(d)(8)(i),
whether or not required to be filed with the Commission or (iii) is
exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a
description of the Underwritten Securities or of the offering that does
not reflect the final terms, in each case in the form filed or required
to be filed with the Commission or, if not required to be filed, in the
form retained in the Company's records pursuant to Rule 433(g).
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"Issuer General Use Free Writing Prospectus" means any Issuer Free
Writing Prospectus that is intended for general distribution to
prospective investors.
"Issuer Limited Use Free Writing Prospectus" means any Issuer Free
Writing Prospectus that is not an Issuer General Use Free Writing
Prospectus.
"Statutory Prospectus" as of any time means the prospectus
relating to the Underwritten Securities that is included in the
Registration Statement immediately prior to that time, including any
document incorporated by reference therein and any preliminary or other
prospectus or prospectus supplement deemed to be a part thereof.
Each Issuer Free Writing Prospectus, as of its issue date and at
all subsequent times through the completion of the public offer and
sale of the Underwritten Securities, did not, does not and will not
include any information that conflicted, conflicts or will conflict
with the information contained in the Registration Statement or the
Prospectus, including any document incorporated by reference therein
and any preliminary or other prospectus deemed to be a part thereof
that has not been superseded or modified.
The representations and warranties in this subsection shall not
apply to statements in or omissions from the Registration Statement,
the Prospectus or any Issuer Free Writing Prospectus made in reliance
upon and in conformity with written information furnished to the
Company by the Underwriters expressly for use therein.
(2) Incorporated Documents. The documents incorporated or deemed
to be incorporated by reference in the Registration Statement and the
Prospectus, when they became effective or at the time they were or
hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the "1934 Act
Regulations") and, when read together with the other information in the
Prospectus, (a) at the time the Original Registration Statement became
effective, (b) at the earlier of the time the Prospectus was first used
and the date and time of the first contract of sale of Underwritten
Securities in this offering and (c) at the Closing Times, did not and
will not include an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(3) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement,
the General Disclosure Package or the Prospectus, except as otherwise
stated therein or contemplated thereby, there has been no material
adverse change in
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the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business (a "Material Adverse Effect").
(b) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries and delivered to any Underwriter or
to counsel for the Underwriters in connection with the offering of the
Underwritten Securities shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters set forth in such
certificate as of the date of such certificate and, unless subsequently
amended or supplemented, at each Representation Date subsequent thereto.
(c) Representations and Warranties by the Underwriters. Each
Underwriter represents and warrants to the Company, as of each
Representation Date, as follows:
(1) In relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a "Relevant
Member State"), the each Underwriter represents and agrees that with
effect from and including the date on which the Prospectus Directive is
implemented in that Relevant Member State (the "Relevant Implementation
Date") it has not made and will not make an offer of Underwritten
Securities to the public in that Relevant Member State except that it
may, with effect from and including the Relevant Implementation Date,
make an offer of Underwritten Securities to the public in that Relevant
Member State at any time:
(i) to legal entities which are authorized or regulated to operate
in the financial markets or, if not so authorized or regulated, whose
corporate purpose is solely to invest in securities;
(ii) to any legal entity which has two or more of (1) an average
of at least 250 employees during the last financial year; (2) a total
balance sheet of more than [Euro]43,000,000 and (3) an annual net
turnover of more than [Euro]50,000,000, as shown in its last annual or
consolidated accounts; or
(ii) in any other circumstances which do not require the
publication by the trust of a prospectus pursuant to Article 3 of the
Prospectus Directive.
For the purposes of this provision, the expression an "offer of
Underwritten Securities to the public" in relation to any Underwritten
Securities in any Relevant Member State means the communication in any
form and by any means of sufficient information on the terms of the
offer and the Underwritten Securities to be offered so as to enable an
investor to decide to purchase or subscribe the Underwritten
Securities, as the same may be varied in that Member State by any
measure implementing the Prospectus Directive in that Member State and
the expression Prospectus Directive means
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Directive 2003/71/EC and includes any relevant implementing measure in
each Relevant Member State.
(2) Each Underwriter represents and agrees that:
(i) it has only communicated or caused to be communicated and will
only communicate or cause to be communicated an invitation or
inducement to engage in investment activity (within the meaning of
Section 21 of the FSMA) received by it in connection with the issue or
sale of the Underwritten Securities in circumstances in which Section
21(1) of the FSMA does not apply to a Trust; and
(ii) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in relation
to the Underwritten Securities in, from or otherwise involving the
United Kingdom.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Underwritten Securities. The several commitments of the
Underwriters to purchase the Underwritten Securities pursuant to the
applicable Terms Agreement shall be deemed to have been made on the basis
of the representations and warranties herein contained and shall be subject
to the terms and conditions herein set forth.
(b) Payment. Payment of the purchase price for, and delivery of, the
Underwritten Securities shall be made (i) in the case of Underwritten
Securities in registered form, at the offices of ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ or at such other place as shall be agreed upon by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and
the Company, at 9:00 A.M. (Eastern time), on the third (fourth, if the
pricing occurs after 4:30 P.M. (Eastern time) on any given day) business
day after the date of the applicable Terms Agreement (unless postponed in
accordance with the provisions of Section 10 hereof), or such other time
not later than ten business days after such date as shall be agreed upon by
▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Company (such time and date of payment and delivery
being herein called the "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against
delivery to the Representative for its account or, if applicable, for the
respective accounts of the Underwriters of the Underwritten Securities to
be purchased by them (unless such Underwritten Securities are issuable only
in the form of one or more global securities registered in the name of a
depository or a nominee of a depository, in which event the Underwriters'
interest in such global certificate shall be noted in a manner satisfactory
to the Underwriters and their counsel). It is understood that each
Underwriter has authorized the Representative, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Underwritten Securities which it has severally agreed to purchase. ▇▇▇▇▇▇▇
▇▇▇▇▇,
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individually and not as representative of the Underwriters, may (but shall
not be obligated to) make payment of the purchase price for the
Underwritten Securities to be purchased by any Underwriter whose funds have
not been received by the Closing Time, but such payment shall not relieve
such Underwriter from its obligations hereunder.
(c) Denominations; Registration. Certificates for the Underwritten
Securities shall be in such denominations and registered in such names as
the Representative may request in writing at least one full business day
prior to the Closing Time. The certificates for the Underwritten Securities
will be made available for examination and packaging by the Representative
in The City of New York not later than 10:00 A.M. (Eastern time) on the
business day prior to the Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with the
Representative, and with each Underwriter participating in the applicable
offering of Underwritten Securities, as follows:
(a) Compliance with Securities Regulations and Commission Requests;
Payment of Filing Fees. The Company, subject to Section 3(b), will comply
with the requirements of Rule 430B of the 1933 Act Regulations if and as
applicable, and will notify the Representative as soon as reasonably
possible of (i) the effectiveness of any post-effective amendment to the
Registration Statement or new registration statement relating to the
Underwritten Securities or the filing of any supplement or amendment to the
Prospectus, (ii) the receipt of any comments from the Commission, (iii) any
request by the Commission for any amendment to the Registration Statement
or the filing of a new registration statement or any amendment or
supplement to the Prospectus or otherwise deemed to be a part thereof or
for additional information, (iv) the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or such
new registration statement or of any order preventing or suspending the use
of any preliminary prospectus, or of the suspension of the qualification of
the Underwritten Securities for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such purposes
or of any examination pursuant to Section 8(e) of the 1933 Act concerning
the Registration Statement and (v) if the Company becomes the subject of a
proceeding under Section 8A of the 1933 Act in connection with the offering
of the Underwritten Securities. The Company will effect the filings
required under Rule 424 of the 1933 Act Regulations, in the manner and
within the time period required by Rule 424 (without reliance on Rule
424(b)(8)) and will take such steps as it deems necessary to ascertain
promptly whether the Prospectus transmitted for filing under Rule 424 was
received for filing by the Commission and, in the event that it was not, it
will promptly file the Prospectus. The Company will make reasonable efforts
to prevent the issuance of any stop order and, if any stop order is issued,
to obtain the lifting thereof as soon as reasonably possible.
8
(b) Filing of Amendments and Exchange Act Documents. The Company will
give the Representative notice of its intention to file or prepare any
amendment to the Registration Statement or new registration statement
relating to the Underwritten Securities or any amendment, supplement or
revision to either any preliminary prospectus (including any prospectus
included in the Original Registration Statement or amendment thereto at the
time it became effective) or to the Prospectus, whether pursuant to the
1933 Act, the 1934 Act or otherwise, and the Company will furnish the
Representative with copies of any such documents a reasonable amount of
time prior to such proposed filing or use, as the case may be, and will not
file or use any such document to which the Representative or counsel for
the Underwriters shall object. The Company will give the Representative
notice of any filings made pursuant to the 1934 Act or 1934 Act Regulations
within 48 hours prior to the Applicable Time; the Company will give the
Representative notice of its intention to make any such filing from the
Applicable Time to the Closing Time and will furnish the Representative
with copies of any such documents a reasonable amount of time prior to such
proposed filing and will not file or use any such document to which the
Representative or counsel for the Underwriters shall object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Representative and counsel for the Underwriters,
without charge, upon written request, signed copies of the Original
Registration Statement and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein and documents
incorporated or deemed to be incorporated by reference therein or otherwise
deemed to be a part thereof) and signed copies of all consents and
certificates of experts, and will also deliver to the Representative,
without charge, a conformed copy of the Original Registration Statement and
of each amendment thereto (without exhibits) for each of the Underwriters.
Copies of the Original Registration Statement and each amendment thereto
furnished to the Underwriters will be identical to any electronically
transmitted copies thereof filed with the Securities and Exchange
Commission (the "Commission") pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company will deliver to each
Underwriter, without charge, as many copies of each preliminary prospectus
as such Underwriter may reasonably request, and the Company hereby consents
to the use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to each Underwriter, without charge, during the period
when the Prospectus is required to be delivered under the 1933 Act or the
1934 Act, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request. The Prospectus
and any amendments or supplements thereto furnished to the Underwriters
will be identical to any electronically transmitted copies thereof filed
with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will
comply with the 1933 Act and the 1933 Act Regulations and the ▇▇▇▇ ▇▇▇ and
the
9
1934 Act Regulations so as to permit the completion of the distribution of
the Underwritten Securities as contemplated in this Underwriting Agreement
and the applicable Terms Agreement and in the Registration Statement and
the Prospectus. If at any time when the Prospectus is required by the 1933
Act or the 1934 Act to be delivered in connection with sales of the
Underwritten Securities, any event shall occur or condition shall exist as
a result of which it is necessary, in the opinion of counsel for the
Underwriters or for the Company, which the Company may request to be in
writing, to amend the Registration Statement in order that the Registration
Statement 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 or to amend or supplement the
Prospectus in order that the Prospectus 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 not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, which the Company may
request to be in writing, at any such time to amend the Registration
Statement or to file a new registration statement or amend or supplement
the Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, the Company will promptly prepare and file with
the Commission, subject to Section 3(b), such amendment, supplement or new
registration statement as may be reasonably necessary to correct such
statement or omission or to comply with such requirements, the Company will
use its best efforts to have such amendment or new registration statement
declared effective as soon as practicable and the Company will furnish to
the Underwriters, without charge, such number of copies of such amendment,
supplement or new registration statement as the Underwriters may reasonably
request. If at any time following issuance of an Issuer Free Writing
Prospectus there occurred or occurs an event or development as a result of
which such Issuer Free Writing Prospectus conflicted or would conflict with
the information contained in the Registration Statement (or any other
registration statement relating to the Underwritten Securities) or the
Statutory Prospectus or any preliminary prospectus or included or would
include an untrue statement of a material fact or omitted or would omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances prevailing at that subsequent time, not
misleading, the Company will promptly notify the Underwriters and will
promptly amend or supplement, at its own expense, such Issuer Free Writing
Prospectus to eliminate or correct such conflict, untrue statement or
omission.
(f) Blue Sky Qualifications. The Company will use reasonable efforts,
in cooperation with the Underwriters, to qualify the Underwritten
Securities and, if applicable, any related Underlying Securities, for
offering and sale under the applicable securities laws of such states and
other jurisdictions (domestic or foreign) as the Representative may request
and to maintain such qualifications in effect for a period of not less than
one year from the date of the applicable Terms Agreement; provided,
however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as
a dealer in securities in any jurisdiction in which it is not so qualified
or to subject
10
itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject. In each jurisdiction in which the
Underwritten Securities and, if applicable, any related Underlying
Securities, have been so qualified, the Company will file such statements
and reports as may be required by the laws of such jurisdiction to continue
such qualification in effect for a period of not less than one year from
the date of such Terms Agreement.
(g) Earnings Statement. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as reasonably practicable an
earnings statement for the purposes of, and to provide to the Underwriters
the benefits contemplated by, the last paragraph of Section 11(a) of the
1933 Act.
(h) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods required by the 1934 Act and the
1934 Act Regulations.
(i) Listing. The Company will use all reasonable efforts to effect
the listing of the Underwritten Securities prior to the Closing Time, on
any national securities exchange or quotation system if and as specified in
the applicable Terms Agreement.
(j) Issuer Free Writing Prospectuses. The Company represents and
agrees that, unless it obtains the prior consent of the Underwriters, and
each Underwriter represents and agrees that, unless it obtains the prior
consent of the Company, it has not made and will not make any offer
relating to the Underwritten Securities that would constitute an "issuer
free writing prospectus," as defined in Rule 433, or that would otherwise
constitute a "free writing prospectus," as defined in Rule 405, required to
be filed with the Commission. Any such free writing prospectus consented to
by the Company and the Underwriters is hereinafter referred to as a
"Permitted Free Writing Prospectus." The Company represents that it has
treated or agrees that it will treat each Permitted Free Writing Prospectus
as an "issuer free writing prospectus," as defined in Rule 433, and has
complied and will comply with the requirements of Rule 433 applicable to
any Permitted Free Writing Prospectus, including timely filing with the
Commission where required, legending and record keeping.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Underwriting Agreement or the
applicable Terms Agreement, including (i) the preparation, printing and
filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of this Underwriting
Agreement, any Terms
11
Agreement, any Agreement among Underwriters, the Trust Agreements and such
other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Underwritten Securities, (iii)
the preparation, issuance and delivery of the Underwritten Securities and
any certificates for the Underwritten Securities, to the Underwriters,
including any transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Underwritten Securities to the
Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors or agents (including transfer agents and
registrars), as well as the fees and disbursements of the Trustee and its
counsel, (v) the qualification of the Underwritten Securities and, if
applicable, any related Underlying Securities, under state securities laws
in accordance with the provisions of Section 3(f) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the
preparation, printing and delivery of the Blue Sky Survey and any Legal
Investment Survey, and any amendment thereto, (vi) the printing and
delivery to the Underwriters of copies of each preliminary prospectus, any
Permitted Free Writing Prospectus and the Prospectus and any amendments or
supplements thereto and any costs associated with electronic delivery of
any of the foregoing by the Underwriters to investors, (vii) the fees
charged by nationally recognized statistical rating organizations for the
rating of the Underwritten Securities, (viii) the fees and expenses
incurred with respect to the listing of the Underwritten Securities, if
applicable, and (ix) the filing fees incident to, and the reasonable fees
and disbursements of counsel to the Underwriters in connection with, the
review, if any, by the National Association of Securities Dealers, Inc.
(the "NASD") of the terms of the sale of the Underwritten Securities.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by the Representative in accordance with the provisions of
Section 5 or Section 9(b)(i) hereof, the Company shall reimburse the
Underwriters named in such Terms Agreement for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for
the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase and pay for the Underwritten Securities pursuant to
the applicable Terms Agreement are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any of its subsidiaries
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement; Filing of Prospectus. The
Registration Statement has become effective under the 1933 Act and no stop
order suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act and no proceedings for that purpose shall
have been initiated or be pending or threatened by the Commission, and any
request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing
12
information relating to the description of the Underwritten Securities, the
specific method of distribution and similar matters shall have been filed
with the Commission in the manner and within the time period required by
Rule 424(b) without reliance on Rule 424(b)(8) (or any required
post-effective amendment providing such information shall have been filed
and become effective in accordance with the requirements of Rule 430B).
(b) Opinion of Counsel for Company. At Closing Time, the
Representative shall have received the favorable opinion, dated as of
Closing Time, of Shearman & Sterling LLP, counsel for the Company, in form
and substance satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other
Underwriters.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representative shall have received the favorable opinion, dated as of
Closing Time, of Shearman & Sterling LLP, counsel for the Underwriters
named in the applicable Terms Agreement, together with signed or reproduced
copies of such letter for each of the other Underwriters, in form and
substance satisfactory to the Underwriters. In giving such opinion, such
counsel may rely, as to all matters governed by the laws of jurisdictions
other than the law of the State of New York, the federal law of the United
States and the General Corporation Law of the State of Delaware, upon the
opinions of counsel satisfactory to the Representative. Such counsel may
also state that, insofar as such opinion involves factual matters, they
have relied, to the extent they deem proper, upon certificates of officers
of the Company and its subsidiaries and certificates of public officials.
(d) Officers' Certificate. At Closing Time, there shall not have
been, since the date of the applicable Terms Agreement or since the
respective dates as of which information is given in the Prospectus or the
General Disclosure Package, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the
Representative shall have received a certificate of the President, a Vice
President, the Treasurer, an Assistant Treasurer, or the Controller of the
Company, dated as of Closing Time, to the effect that (i) there has been no
such material adverse change, (ii) the representations and warranties in
Section 1 are true and correct with the same force and effect as though
expressly made at and as of the Closing Time, (iii) the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Time, and (iv) no stop
order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been initiated or, to the
Company's knowledge, threatened by the Commission.
(e) Ratings. At Closing Time, the Underwritten Securities shall have
the ratings accorded by any "nationally recognized statistical rating
organization", as defined by the Commission for purposes of Rule 436(g)(2)
of the 1933 Act Regulations, if and as specified in the applicable Terms
Agreement. Since the time
13
of execution of such Terms Agreement, there shall not have occurred a
downgrading in the rating assigned to the Underwritten Securities and no
such rating organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
the Underwritten Securities.
(f) Approval of Listing. At Closing Time, the Underwritten Securities
shall have been approved for listing, subject only to official notice of
issuance, if and as specified in the applicable Terms Agreement.
(g) No Objection. If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the NASD
shall not have raised any objection with respect to the fairness and
reasonableness of the underwriting terms and arrangements.
(h) Additional Documents. At Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance
and sale of the Underwritten Securities as herein contemplated or in order
to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and sale
of the Underwritten Securities as herein contemplated shall be satisfactory
in form and substance to the Representative and counsel for the
Underwriters.
If any condition specified in this Section 5 shall not have been fulfilled
when and as required to be fulfilled, the applicable Terms Agreement may be
terminated by the Representative by notice to the Company at any time at or
prior to the Closing Time, and such termination shall be without liability
of any party to any other party except as provided in Section 4 and except
that Sections 1, 6, 7 and 8 shall survive any such termination and remain
in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls
any Underwriter within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act as follows:
i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430B Information deemed to
be a part thereof, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus, any Issuer Free Writing
14
Prospectus or the Prospectus (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company; and
iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Representative),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or (ii)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter expressly for use in the Registration Statement (or any amendment
thereto), including the Rule 430B Information or any preliminary prospectus, any
Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement
thereto).
Insofar as this indemnity agreement may permit indemnification for
liabilities under the 1933 Act of any person who is a partner of an Underwriter
or who controls an Underwriter within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act and who is a director or officer of the Company or
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act, such indemnity agreement is subject to the undertaking of
the Company in the Registration Statement.
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company,
its directors, each of its officers who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and
all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430B Information deemed to be a part thereof, if
applicable, or any preliminary prospectus, any Issuer Free Writing
Prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance
15
upon and in conformity with written information furnished to the Company
by such Underwriter through the Representative expressly for use therein.
(c) Documentary Stamp or Similar Issue Tax Indemnification. The
Company agrees to indemnify and hold harmless each Underwriter against any
documentary stamp or similar issue tax and any related interest or
penalties on the issue or sale of the Underwritten Securities to the
Underwriters which are due in the United States of America or any other
jurisdiction.
(d) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof
and in any event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 6(a) above, counsel to the
indemnified parties shall be selected by the Representative, and, in the
case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party
may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except
with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions
in the same jurisdiction arising out of the same general allegations or
circumstances, except that the Company shall be liable for the fees and
expenses of one counsel representing ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the persons
controlling ▇▇▇▇▇▇▇ ▇▇▇▇▇ and one counsel representing all other
Underwriters and the persons controlling them. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever in respect of
which indemnification or contribution could be sought under this Section 6
or Section 7 hereof (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding 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.
(e) Settlement without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested in writing an indemnifying
party to reimburse the indemnified party for fees and expenses of counsel,
such indemnifying party agrees that it shall be liable for any settlement
of the nature contemplated by Section 6(a)(ii) effected without its written
consent if (i) such
16
settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party
shall have received written notice of the terms of such settlement at least
30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such written request prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters, on the other hand, from the offering of the
Underwritten Securities pursuant to the applicable Terms Agreement or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, on
the one hand, and of the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of such Underwritten Securities (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus.
The relative fault of the Company, on the one hand, and the Underwriters,
on the other hand, shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any
17
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities 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 any 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the number or aggregate principal amount, as the case may be, of Initial
Underwritten Securities set forth opposite their respective names in the
applicable Terms Agreement, and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Underwriting
Agreement or the applicable Terms Agreement or in certificates of officers of
the Company submitted pursuant hereto or thereto shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter or controlling person, or by or on behalf of the Company, and
shall survive delivery of and payment for the Underwritten Securities.
SECTION 9. Termination.
(a) Underwriting Agreement. This Underwriting Agreement (excluding
the applicable Terms Agreement) may be terminated for any reason at any
time by the Company or the Representative upon the giving of 30 days' prior
written notice of such termination to the other party hereto.
(b) Terms Agreement. The Representative may terminate the applicable
Terms Agreement, by notice to the Company, at any time at or prior to the
Closing Time, if (i) there has been, since the time of execution of such
Terms Agreement or since the respective dates as of which information is
given in the Prospectus (exclusive of any supplement thereto) or the
General Disclosure Package, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its
18
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) there has occurred any material
adverse change in the financial markets in the United States or, if the
Underwritten Securities include securities denominated or payable in, or
indexed to, one or more foreign or composite currencies, in the
international financial markets, or any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political,
financial or economic conditions, in each case the effect of which is such
as to make it, in the judgment of the Representative, impracticable to
market the Underwritten Securities or to enforce contracts for the sale of
the Underwritten Securities, or (iii) trading generally on the New York
Stock Exchange or the American Stock Exchange or on the NASDAQ Stock Market
has been suspended or limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by either
of said exchanges or by such system or by order of the Commission, the NASD
or any other governmental authority, or (iv) a banking moratorium has been
declared by either Federal or New York authorities or, if the Underwritten
Securities include securities denominated or payable in, or indexed to, one
or more foreign or composite currencies, by the relevant authorities in the
related foreign country or countries.
(c) Liabilities. If this Underwriting Agreement or the applicable
Terms Agreement is terminated pursuant to this Section 9, such termination
shall be without liability of any party to any other party except as
provided in Section 4 hereof, and provided further that Sections 1, 6, 7
and 8 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at the Closing Time to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable Terms
Agreement (the "Defaulted Securities"), then the Representative shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representative shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities does not exceed 10% of the aggregate principal
amount or number, as the case may be, of Underwritten Securities to be
purchased on such date pursuant to such Terms Agreement, the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the
full amount thereof in the proportions that their respective underwriting
obligations under such Terms Agreement bear to the underwriting obligations
of all non-defaulting Underwriters, or
(b) if the aggregate principal amount or number, as the case may be,
of Defaulted Securities exceeds 10% of the aggregate principal amount or
number,
19
as the case may be, of Underwritten Securities to be purchased on such date
pursuant to such Terms Agreement, such Terms Agreement shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
the applicable Terms Agreement either the Representative or the Company shall
have the right to postpone the Closing Time for a period not exceeding seven
calendar days in order to effect any required changes in the Registration
Statement or the Prospectus or in any other documents or arrangements.
20
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative at 4 World Financial
Center, New York, New York 10080, attention of [o], or, in respect of any Terms
Agreement, to such other person and place as may be specified therein; and
notices to the Company shall be directed to it at 4 World Financial Center, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of the Treasurer with a copy to the
Corporate Secretary at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
SECTION 12. No Advisory or Fiduciary Relationship. The Company
acknowledges and agrees that (a) the purchase and sale of the Underwritten
Securities pursuant to this Agreement, including the determination of the public
offering price of the Underwritten Securities and any related discounts and
commissions, is an arm's-length commercial transaction between the Company, on
the one hand, and the Underwriters, on the other hand, (b) in connection with
the offering contemplated hereby and the process leading to such transaction
each Underwriter is and has been acting solely as a principal and is not the
agent or fiduciary of the Company, or its stockholders, creditors, employees or
any other party, (c) each Underwriter has not assumed or will assume an advisory
or fiduciary responsibility in favor of the Company with respect to the offering
contemplated hereby or the process leading thereto (irrespective of whether the
Underwriter has advised or is currently advising the Company on other matters)
and each Underwriter has no obligation to the Company with respect to the
offering contemplated hereby except the obligations expressly set forth in this
Agreement, (d) each Underwriter and its affiliates may be engaged in a broad
range of transactions that involve interests that differ from those of the
Company, and (e) each Underwriter has not provided any legal, accounting,
regulatory or tax advice with respect to the offering contemplated hereby and
the Company has consulted its own legal, accounting, regulatory and tax advisors
to the extent it deemed appropriate.
SECTION 13. Integration. This Agreement supersedes all prior agreements
and understandings (whether written or oral) between the Company and the
Underwriters, or any of them, with respect to the subject matter hereof.
SECTION 14. Parties. This Underwriting Agreement and the applicable Terms
Agreement shall each inure to the benefit of and be binding upon the Company,
the Representative and, upon execution of such Terms Agreement, any other
Underwriters and their respective successors. Nothing expressed or mentioned in
this Underwriting Agreement or such Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Underwriting Agreement or such Terms Agreement or any provision
herein or therein contained. This Underwriting Agreement and such Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation.
21
No purchaser of Underwritten Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 15. GOVERNING LAW. THIS UNDERWRITING AGREEMENT AND ANY APPLICABLE
TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN
SUCH STATE.
22
SECTION 16. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
Underwriting Agreement, along with all counterparts, will become a binding
agreement between ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Company in accordance with its terms.
Very truly yours,
▇▇▇▇▇▇▇ ▇▇▇▇▇ DEPOSITOR, INC.
By:
------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:
-------------------------------------
Authorized Signatory
23
Exhibit A
▇▇▇▇▇▇▇ ▇▇▇▇▇ DEPOSITOR, INC.
(a Delaware corporation)
[PPLUS][INDEXPLUS] TRUST CERTIFICATES SERIES [ ]
TERMS AGREEMENT
Dated: _______________, 20__
To: ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We understand that ▇▇▇▇▇▇▇ ▇▇▇▇▇ Depositor, Inc., a Delaware corporation
(the "Company"), proposes to issue and sell [ ] [PPLUS][INDEXPLUS] Trust
Certificates Series [ ] (the "Certificates ) at $[ ] [stated amount] [notional
principal amount] per Certificate (the "Underwritten Securities").
Reference is made to the Underwriting Agreement dated as of [o], 2006 by
and between ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and the
undersigned (the "Underwriting Agreement")
Subject to (i) the terms and conditions set forth or incorporated by
reference herein and (ii) the terms of the Underwriting Agreement we [the
underwriters named below (the "Underwriters")] offer to purchase [, severally
and not jointly,] the [stated amount] [notional principal amount] [number] of
Underwritten Securities [opposite their names set forth below] at the purchase
price set forth below.
[Principal Amount]
Underwriter [Number] of Underwritten Securities
Total --------------------------
[$]
--------------------------
The Underwritten Securities shall have the following terms:
Title:
Ratings:
Amount:
Denominations:
Currency of payment:
A-1
Distribution rate or formula:
Cut-off date:
Distribution payment dates:
Regular record dates:
Stated maturity date:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
Trust Certificate Purchase Price:
Form:
Redemption provisions:
Other terms and conditions:
Closing date and location:
Please accept this offer no later than ____ o'clock P.M. (New York City
time) on ______________ by signing a copy of this Terms Agreement in the space
set forth below and returning the signed copy to us.
Very truly yours,
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By
--------------------------------
Authorized Signatory
[Acting on behalf of itself and the
other named Underwriters.]
Accepted:
▇▇▇▇▇▇▇ ▇▇▇▇▇ DEPOSITOR, INC.
By
-----------------------
Name:
Title:
A-2