EXHIBIT 1-b
UNDERWRITING AGREEMENT
(Preferred Stock and Depositary Shares)
_______ __, 200_
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, New York 10036
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
Morgan Stanley Dean Witter & Co., a Delaware corporation (the "Company"),
proposes to [issue and sell ____________ shares of its ___% Cumulative
Preferred Stock, par value $.01 per share, stated value $____ per share (the
"Firm Offered Securities")]1 [sell ______ Depositary Shares (the "Firm Offered
Securities"), each representing a [fraction] interest in its __% Cumulative
Preferred Stock, par value $.01 per share, stated value $______ per share].2
The Company also proposes to [issue and sell not more than an additional
___________ shares of its ___% Cumulative Preferred Stock, par value $.01 per
share, stated value $___ per share (the "Additional Offered Securities"),]1
[issue and sell not more than an additional ________ Depositary Shares (the
"Additional Offered Securities"), each representing a [fraction] interest in
its __% Cumulative Preferred Stock, par value $.01 per share, stated value
$______ per share,]2 if and to the extent that we shall have determined to
exercise, on behalf of the Underwriters, the right to purchase such Additional
Offered Securities referred to below. The Firm Offered Securities and the
Additional Offered Securities are hereinafter collectively referred to as the
"Offered Securities" or as the ["Preferred Shares"/"Depositary Shares"].3 [The
Depositary Shares will be issued by ______________ (the "Depositary")
- -------------
1 Include only for issuances of Preferred Stock.
2 Include only for issuances of Depositary Shares representing interests
in Preferred Stock.
3 Delete as appropriate.
pursuant to the terms of a Deposit Agreement (the "Deposit Agreement") to be
entered into among the Company, the Depositary, and the holders from time to
time of Depositary Receipts issued thereunder. The Depositary Shares will be
evidenced by Depositary Receipts issued pursuant to the Deposit Agreement (the
"Depositary Receipts"). The shares of the Company's ___% Cumulative Preferred
Stock, without par value, stated value $________ per share, relating to the
Depositary Shares are hereinafter referred to as the "Underlying Preferred
Shares".]4
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the number of Firm Offered Securities
set forth below opposite their names at $____ per share plus accrued dividends,
if any, from ________ __, 200_ to the date of payment and delivery:
Number of Firm
Offered Securities
Underwriter To Be Purchased
[Morgan Stanley DW Inc.]
[Morgan Stanley & Co. Incorporated]
[Insert syndicate list]
--------------
Total...... ==============
The Underwriters will pay for such Firm Offered Securities upon
delivery thereof at the offices of Davis Polk & Wardwell, 450 Lexington Avenue,
New York, New York at 10:00 a.m. (New York time) on ________ __, 200_, or at
such other time, not later than 5:00 p.m. (New York time) on ________ __, 200_,
as shall be designated by the Manager. The time and date of such payment and
delivery are hereinafter referred to as the "Closing Date."
Subject to the terms and conditions set forth herein and incorporated
by reference herein, the Company hereby agrees to sell to the Underwriters the
Additional Offered Securities, and the Underwriters shall have a one-time right
to purchase, severally and not jointly, up to __________ Additional Offered
Securities at the purchase price set forth above plus accrued dividends, if
any. Additional Offered Securities may be purchased solely for the purpose of
covering
- -------------
4 Include only for issuances of Depositary Shares representing interests
in Preferred Stock.
2
over-allotments made in connection with the offering of the Firm Offered
Securities.
If any Additional Offered Securities are to be purchased, each
Underwriter agrees, severally and not jointly, to purchase the number of
Additional Offered Securities (subject to such adjustments to eliminate
fractional shares as we may determine) that bears the same proportion to the
total number of Additional Offered Securities to be purchased as the number of
Firm Offered Securities set forth above opposite the name of such Underwriter
bears to the total number of Firm Offered Securities. The Underwriters will pay
for any Additional Offered Securities upon delivery thereof at the offices of
Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York at 10:00 a.m.
(New York time) on such date (which may be the same as the Closing Date but
shall in no event be earlier than the Closing Date nor later than ten business
days after the giving of the notice hereinafter referred to) as shall be
designated in a written notice from us to the Company of our determination, on
behalf of the Underwriters, to purchase a number, specified in such notice, of
Additional Offered Securities. The time and date of such payment are
hereinafter referred to as the "Option Closing Date." The notice of the
determination to exercise the option to purchase Additional Offered Securities
may be given at any time within 30 days after the date of this Agreement. The
several obligations of the Underwriters to purchase Additional Offered
Securities are subject to the delivery to us on the Option Closing Date of such
documents as we may reasonably request with respect to the good standing of the
Company, the due authorization and issuance of the Additional Offered
Securities [, the Underlying Preferred Shares]5 and other matters related to
the issuance of the Additional Offered Securities [and the Underlying Preferred
Shares]5.
The Offered Securities [and the Underlying Preferred Shares]6 shall
have the terms set forth in the Prospectus dated ______________, 200_ and the
Prospectus Supplement dated ____________, 200_, including the following:
Terms of [Underlying]6 Preferred Shares
Dividends:
Rate:
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5 Include only for issuances of Depositary Shares representing interests
in Preferred Stock.
3
Dividend Payment Dates: _______ __, _______ __,_______ __, and
_______ __, commencing _______ __, 20__; Dividends cumulate from _______ __,
20__ Liquidation Preference: $_____ per share
Redemption:
[Other Terms:]
[Terms of Depositary Shares
Dividends:
Rate:
Dividend Payment Dates: _______ __, _______ __, _______ __, and
_______ __, commencing _______ __, 20__; Dividends cumulate from _______ __,
20__
Liquidation Preference: $_____ per share (equivalent to $____ per
Underlying Preferred Share)
Redemption:
[Other Terms:]]6
Capitalized terms used above and not defined herein shall have the
meanings set forth in the Prospectus and Prospectus Supplement referred to
above.
Except as set forth below, all the provisions contained in the
document entitled Morgan Stanley Dean Witter & Co. Underwriting Agreement
Standard Provisions (Preferred Stock and Depositary Shares) dated o, 2002, (the
"Standard Provisions"), a copy of which is attached hereto, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been set forth in
full herein, except that [(i)] if any term defined in such document is
otherwise defined herein, the definition set forth herein shall control [and
(ii) all references in such document to Depositary Shares, Depositary Receipts,
Underlying Preferred Shares and the Deposit Agreement shall not be deemed to be
part of this Agreement].7
- -------------
6 Include only for issuances of Depositary Shares representing interests
in Preferred Stock.
7 Include only for issuances of Preferred Stock.
4
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
[MORGAN STANLEY DW INC.]
[MORGAN STANLEY & CO.
INCORPORATED]
[Name of other Lead Managers]
On behalf of themselves and the
other Underwriters named herein
By MORGAN STANLEY & CO.
INCORPORATED
By: _______________________________
Name:
Title:
Accepted as of the date hereof:
MORGAN STANLEY DEAN WITTER & CO.
By: _________________________
Name:
Title:
5
MORGAN STANLEY DEAN WITTER & CO.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(PREFERRED STOCK AND DEPOSITARY SHARES)
o, 2002
From time to time, Morgan Stanley Dean Witter & Co. , a Delaware
corporation (the "Company"), may enter into one or more underwriting agreements
that provide for the sale of designated securities to the several underwriters
named therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement"). The
Underwriting Agreement, including the provisions incorporated therein by
reference, is herein referred to as this Agreement. Terms defined in the
Underwriting Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement including a prospectus relating to the
Offered Securities and the Underlying Preferred Shares and has filed with, or
transmitted for filing to, or shall promptly hereafter file with or transmit
for filing to, the Commission a prospectus supplement (the "Prospectus
Supplement") specifically relating to the Offered Securities and the Underlying
Preferred Shares pursuant to Rule 424 under the Securities Act of 1933, as
amended (the "Securities Act"). The term "Registration Statement" means the
registration statement as amended to the date of this Agreement. The term
"Basic Prospectus" means the prospectus relating to the Offered Securities and
the Underlying Preferred Shares included in the Registration Statement. The
term "Prospectus" means the Basic Prospectus together with the Prospectus
Supplement. The term "preliminary prospectus" means a preliminary prospectus
supplement specifically relating to the Offered Securities and the Underlying
Preferred Shares together with the Basic Prospectus. As used herein, the terms
"Basic Prospectus," "Prospectus" and "preliminary prospectus" shall include in
each case the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include all
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documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
1. Representations and Warranties. The Company represents and warrants
to each of the Underwriters as of the date of the Underwriting Agreement that:
(a) The Registration Statement has become effective, no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities
Act and the rules and regulations of the Commission thereunder.
(c) (i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with
the Exchange Act and the applicable rules and regulations of the
Commission thereunder, (ii) each part of the Registration Statement,
when such part became effective, did not contain and each such part,
as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, (iii) the Registration Statement and the Prospectus
comply, and, as amended or supplemented, if applicable, will comply,
in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder and (iv) the
Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, except that the representations and warranties set
forth in this paragraph (c) do not apply to statements or omissions in
the Registration Statement or the Prospectus based upon information
concerning any Underwriter furnished to the Company in writing by such
Underwriter through the Manager expressly for use therein.
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(d) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its consolidated
subsidiaries, taken as a whole.
(e) Each subsidiary of the Company has been duly incorporated,
is validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its consolidated subsidiaries, taken as a
whole.
(f) The authorized capital stock of the Company, the Offered
Securities, any Underlying Preferred Shares, any Depositary Shares and
any Deposit Agreement conform as to legal matters to the descriptions
thereof contained in the Prospectus.
(g) The Preferred Shares or the Underlying Preferred Shares, as
the case may be, have been duly authorized by the Company and, when
such shares are issued and delivered as contemplated by the terms of
this Agreement, such shares will be validly issued, fully paid and
non-assessable, and the issuance of such shares is not subject to any
preemptive or similar rights.
(h) The deposit of the Underlying Preferred Shares by the
Company in accordance with any Deposit Agreement has been duly
authorized and, when the Depositary Shares are issued and delivered in
accordance with the terms of this Agreement, the Depositary Shares
will represent legal and valid interests in the Underlying Preferred
Shares.
(i) Assuming due authorization, execution and delivery of any
Deposit Agreement by the Depositary, each Depositary Share, if any,
will represent the interest described in the Prospectus in a validly
issued, outstanding, fully paid and non-assessable Underlying
Preferred Share; assuming due execution and delivery of the Depositary
Receipts, if any, by
3
the Depositary pursuant to such Deposit Agreement, the Depositary
Receipts will entitle the holders thereof to the benefits provided
therein and in the Deposit Agreement.
(j) This Agreement has been duly authorized, executed and
delivered by the Company.
(k) The Deposit Agreement, if any, has been duly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company.
(l) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Certificate of Designation relating to the Preferred Shares or the
Underlying Preferred Shares, as the case may be (the "Preferred Shares
Certificate of Designation"), and the Deposit Agreement, if any, will
not contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its consolidated subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any of its
consolidated subsidiaries, and no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is
required for the performance by the Company of its obligations under
this Agreement, the Preferred Shares Certificate of Designation and
the Deposit Agreement, if any, except such as may be required by the
securities or Blue Sky laws of the various states in connection with
the offer and sale of the Offered Securities; provided, however, that
no representation is made as to whether the purchase of the Preferred
Stock or Depositary Shares constitutes a "prohibited transaction"
under Section 406 of the Employee Retirement Income Security Act of
1974, as amended, or Section 4975 of the Internal Revenue Code of
1986, as amended.
(m) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto effected subsequent to the date of the
Underwriting Agreement).
(n) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its consolidated
subsidiaries is
4
a party or to which any of the properties of the Company or any of its
consolidated subsidiaries is subject that are required to be described
in the Registration Statement or the Prospectus and are not so
described or any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed or incorporated by reference as exhibits to
the Registration Statement that are not described, filed or
incorporated as required.
(o) The Company is not, and after giving effect to the offering
and sale of the Preferred Shares or the Underlying Preferred Shares,
as the case may be, and the application of the proceeds thereof as
described in the Prospectus will not be required to register as, an
"investment company" as such term is defined in the Investment Company
Act of 1940, as amended.
(p) Each of the Company and its consolidated subsidiaries has
all necessary consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all declarations
and filings with, all federal, state, local and other governmental
authorities, all self-regulatory organizations and all courts and
other tribunals, to own, lease, license and use its properties and
assets and to conduct its business in the manner described in the
Prospectus, except to the extent that the failure to obtain or file
would not have a material adverse effect on the Company and its
consolidated subsidiaries, taken as a whole.
(q) Morgan Stanley DW Inc. is registered as a broker-dealer and
investment adviser with the Commission, is registered with the
Commodity Futures Trading Commission as a futures commission merchant
and is a member of the New York Stock Exchange, Inc. and the National
Association of Securities Dealers, Inc.
(r) Morgan Stanley & Co. Incorporated is registered as a
broker-dealer and investment adviser with the Commission, is
registered with the Commodity Futures Trading Commission as a futures
commission merchant and is a member of the New York Stock Exchange,
Inc. and the National Association of Securities Dealers, Inc.
2. Public Offering. The Company is advised by the Manager that the
Underwriters propose to make a public offering of their respective portions of
the Offered Securities as soon after this Agreement has been entered into as in
the Manager's judgment is advisable. The terms of the public offering of the
Offered Securities are set forth in the Prospectus.
5
3. Purchase and Delivery. Payment for the Firm Offered Securities and any
Additional Offered Securities shall be made to the Company in immediately
available funds at the time and place set forth in the Underwriting Agreement.
Payment for any Firm Offered Securities and Additional Offered
Securities that are in the form of Depositary Shares shall be made against
delivery to you on the Closing Date or the Option Closing Date, as the case may
be, for the respective accounts of the several Underwriters of Depositary
Receipts evidencing such Firm Offered Securities or Additional Offered
Securities, as the case may be, registered in such names and in such
denominations as the Manager shall request in writing not later than one full
business day prior to the Closing Date or the Option Closing Date, as the case
may be, with any transfer taxes payable in connection with the transfer of such
Offered Securities to the Underwriters duly paid.
Certificates for any Firm Offered Securities and Additional Offered
Securities shall be in definitive form and registered in such names and in such
denominations as the Manager shall request in writing not later than one full
business day prior to the Closing Date or the Option Closing Date, as the case
may be. The certificates evidencing such Firm Offered Securities and Additional
Offered Securities shall be delivered to you on the Closing Date or the Option
Closing Date, as the case may be, for the respective accounts of the several
Underwriters, with any transfer taxes payable in connection with the transfer
of such Offered Securities to the Underwriters duly paid, against payment of
the purchase price therefor.
4. Conditions to the Underwriters' Obligations. The several obligations
of the Underwriters hereunder are subject to the following conditions:
(a) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date,
(i) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of
6
the Company and its consolidated subsidiaries, taken as a whole,
from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto effected subsequent to the
execution and delivery of the Underwriting Agreement), that, in
the judgment of the Manager, is material and adverse and that
makes it, in the judgment of the Manager, impracticable to market
the Offered Securities on the terms and in the manner
contemplated in the Prospectus.
(b) The Manager shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in clause (i) above and to the
effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing
Date and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or
satisfied on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) The Manager shall have received on the Closing Date an
opinion of Sidley Austin Brown & Wood LLP, outside counsel to the
Company, or of other counsel satisfactory to the Manager and who may
be an officer of the Company, dated the Closing Date, to the effect
that:
(i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
State of Delaware, has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material
adverse effect on the Company and its consolidated subsidiaries,
taken as a whole;
(ii) each of Morgan Stanley DW Inc., Discover Bank, Morgan
Stanley & Co. Incorporated and Morgan Stanley International
Incorporated (the "Material Subsidiaries") has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation,
has the corporate power and authority to own its property and to
7
conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the
Company and its consolidated subsidiaries, taken as a whole;
(iii) each of the Company and its Material Subsidiaries
has all necessary consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all
declarations and filings with, all federal, state, local and
other governmental authorities, all self-regulatory organizations
and all courts and other tribunals, to own, lease, license and
use its properties and assets and to conduct its business in the
manner described in the Prospectus, except to the extent that the
failure to obtain or file would not have a material adverse
effect on the Company and its consolidated subsidiaries, taken as
a whole;
(iv) the authorized capital stock of the Company, the
Offered Securities, any Underlying Preferred Shares, any
Depositary Shares and any Deposit Agreement conform as to legal
matters to the descriptions thereof contained in the Prospectus;
(v) the Preferred Shares or the Underlying Preferred
Shares, as the case may be, have been duly authorized and, when
such shares are issued and delivered as contemplated by the terms
of this Agreement, such shares will be validly issued, fully paid
and non-assessable, and the issuance of such shares is not
subject to any preemptive or similar rights;
(vi) the deposit of the Underlying Preferred Shares by the
Company in accordance with any Deposit Agreement has been duly
authorized and, when the Depositary Shares are issued and
delivered in accordance with the terms of this Agreement, the
Depositary Shares will represent legal and valid interests in the
Underlying Preferred Shares;
(vii) assuming due authorization, execution and delivery of
any Deposit Agreement by the Depositary, each Depositary Share,
if any, will represent the interest described in the Prospectus
in a validly issued, outstanding, fully paid and non-assessable
Underlying Preferred Share; assuming due execution and delivery
8
of the Depositary Receipts, if any, by the Depositary pursuant to
such Deposit Agreement, the Depositary Receipts will entitle the
holders thereof to the benefits provided therein and in the
Deposit Agreement;
(viii) this Agreement has been duly authorized, executed
and delivered by the Company;
(ix) the Deposit Agreement, if any, has been duly
authorized, executed and delivered by the Company and is a valid
and binding agreement of the Company;
(x) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this
Agreement, the Preferred Shares Certificate of Designation and
the Deposit Agreement, if any, will not contravene any provisions
of applicable law or the certificate of incorporation or by-laws
of the Company or, to the best of such counsel's knowledge, any
agreement or other instrument binding upon the Company or any of
its subsidiaries that is material to the Company and its
consolidated subsidiaries, taken as a whole, or, to the best of
such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the
Company or any of its consolidated subsidiaries, and no consent,
approval, authorization or order of or qualification with any
governmental body or agency is required for the performance by
the Company of its obligations under this Agreement, the
Preferred Shares Certificate of Designation and the Deposit
Agreement, except such as may be required by the securities or
Blue Sky laws of the various states in connection with the offer
and sale of the Offered Securities; provided, however, that such
counsel need not express an opinion as to whether the purchase of
the Preferred Stock or Depositary Shares constitutes a
"prohibited transaction" under Section 406 of the Employee
Retirement Income Security Act of 1974, as amended, or Section
4975 of the Internal Revenue Code of 1986, as amended;
(xi) the statements (1) in the Basic Prospectus under
"Description of Capital Stock" and "Plan of Distribution," (2) in
the Prospectus Supplement under "Description of Cumulative
Preferred Stock," "Description of Depositary Shares" and
"Underwriters," (3) in the Registration Statement under Item 15,
(4) in "Item 3. Legal Proceedings" of the most recent annual
report
9
on Form 10-K incorporated by reference in the Prospectus and (5)
in "Item 1. Legal Proceedings" of Part II of the quarterly
reports on Form 10-Q, if any, filed since such annual report and
incorporated by reference in the Prospectus, in each case insofar
as such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein;
(xii) after due inquiry, such counsel does not know of any
legal or governmental proceedings pending or threatened to which
the Company or any of its consolidated subsidiaries is a party or
to which any of the properties of the Company or any of its
consolidated subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are
not so described or of any statutes, regulations, contracts or
other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration
Statement that are not described, filed or incorporated by
reference as required;
(xiii) the Company is not, and after giving effect to the
offering and sale of the Preferred Shares or the Underlying
Preferred Shares, as the case may be, and the application of the
proceeds thereof as described in the Prospectus will not be
required to register as, an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended; and
(xiv) such counsel (1) believes that each document filed
pursuant to the Exchange Act and incorporated by reference in the
Registration Statement and the Prospectus (except as to financial
statements and schedules and other financial and statistical data
included therein, as to which such counsel need not express any
belief) complied when so filed as to form in all material
respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (2) has no reason to
believe that any part of the Registration Statement (except as to
financial statements and schedules and other financial and
statistical data included therein, as to which such counsel need
not express any belief) on the date such part became effective
contained, and the Registration Statement (except as to financial
statements and schedules and other financial and statistical data
included therein, as to which
10
such counsel need not express any belief) as of the date such
opinion is delivered contains, any untrue statement of a material
fact or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (3) believes that the Registration Statement and
Prospectus (except as to financial statements and schedules and
other financial and statistical data included therein, as to
which such counsel need not express any belief) comply as to form
in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and
(4) has no reason to believe that the Prospectus (except as to
financial statements and schedules and other financial and
statistical data included therein, as to which(xiv) such counsel
need not express any belief) as of the date such opinion is
delivered contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading.
(d) The Manager shall have received on the Closing Date an
opinion of Davis Polk & Wardwell, counsel for the Underwriters, dated
the Closing Date, covering the matters referred to in subparagraphs
(iv), (v), (vi), (vii), (viii), (ix), clauses (1) and (2) of (xi) and
clauses (2), (3) and (4) of subparagraph (xiv) of paragraph (c) above.
With respect to subparagraph (xiv) of paragraph (c) above, if such
opinion is given by counsel who is also an officer of the Company, such counsel
may state that his or her opinion and belief are based upon his or her
participation, or the participation of someone under his or her supervision, in
the preparation of the Registration Statement and Prospectus and any amendments
or supplements thereto and documents incorporated therein by reference and
review and discussion of the contents thereof, but are without independent
check or verification, except as specified. With respect to subparagraph (xiv)
of paragraph (c) above, Davis Polk & Wardwell and, if Sidley Austin Brown &
Wood LLP is giving such opinion, Sidley Austin Brown & Wood LLP may state that
their opinion and belief are based upon their participation in the preparation
of the Registration Statement and Prospectus and any amendments or supplements
thereto (other than the documents incorporated by reference) and review and
discussion of the contents thereof (including documents incorporated by
reference), but are without independent check or verification except as
specified.
The opinion of Sidley Austin Brown & Wood LLP, or any other outside
counsel to the Company, described in Section 4(c) above shall be rendered to
the Manager at the request of the Company and shall so state therein.
11
(e) The Manager shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory to
the Manager, from the Company's independent auditors, containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Prospectus; provided that each
letter so furnished shall use a "cut-off date" no more than three
business days prior to the date of such letter.
5. Covenants of the Company. In further consideration of the agreements
of the Underwriters contained herein, the Company covenants as follows:
(a) To furnish the Manager, without charge, a conformed copy of
the Registration Statement (including exhibits and all amendments
thereto) and for delivery to each other Underwriter a conformed copy
of the Registration Statement (without exhibits thereto) and, during
the period mentioned in paragraph (c) below, as many copies of the
Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto or to the Registration Statement as
the Manager may reasonably request.
(b) Before amending or supplementing the Registration Statement
or the Prospectus with respect to the Offered Securities, to furnish
to the Manager a copy of each such proposed amendment or supplement
and not to file any such proposed amendment or supplement to which the
Manager reasonably objects.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the opinion of counsel for
the Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances existing when the Prospectus is
delivered to a purchaser, not misleading, or if in the opinion of
counsel for the Underwriters it is necessary to amend or supplement
the Prospectus to comply with law, forthwith to prepare and furnish,
at its own expense, to the Underwriters and to the dealers (whose
names and addresses the Manager will furnish to the Company) to which
Offered Securities may have been sold by the Manager on behalf of the
Underwriters and to any other dealers upon request, either amendments
or supplements to the Prospectus, satisfactory in all respects to the
Manager, so that the statements in the Prospectus as
12
so amended or supplemented will not, in the light of the circumstances
existing when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as so amended or supplemented,
will comply with law and to cause such amendments or supplements to be
filed promptly with the Commission.
(d) To endeavor to qualify the Offered Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as
the Manager shall reasonably request and to maintain such
qualifications for as long as the Manager shall reasonably request.
(e) To make generally available to the Company's security
holders and to the Manager as soon as practicable an earning statement
covering a twelve month period beginning on the first day of the first
full fiscal quarter after the date of the Underwriting Agreement,
which earning statement shall satisfy the provisions of Section 11(a)
of the Securities Act and the rules and regulations of the Commission
thereunder. If such fiscal quarter is the first fiscal quarter of the
Company's fiscal year, such earning statement shall be made available
not later than 90 days after the close of the period covered thereby
and in all other cases shall be made available not later than 45 days
after the close of the period covered thereby.
(f) To use its best efforts to accomplish the listing of the
Offered Securities on the New York Stock Exchange.
(g) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to
offer, sell, contract to sell or otherwise dispose of any preferred
stock of the Company substantially similar to the Offered Securities
(other than the Offered Securities), without the prior written consent
of the Manager.
(h) Whether or not any sale of Offered Securities is
consummated, to pay all expenses incident to the performance of its
obligations under this Agreement, including: (i) the preparation and
filing of the Registration Statement and the Prospectus and all
amendments and supplements thereto, (ii) the preparation, issuance and
delivery of the Offered Securities, (iii) the fees and disbursements
of the Company's counsel and accountants and of the Depositary and its
counsel, (iv) the qualification of the Offered Securities under
securities or Blue Sky laws in accordance with the provisions of
Section 5(d), including filing fees and the fees and disbursements of
counsel for the Underwriters in connection therewith and in connection
with the preparation of any Blue Sky or Legal Investment Memoranda,
(v) the printing and delivery to the Underwriters
13
in quantities as hereinabove stated of copies of the Registration
Statement and all amendments thereto and of the Prospectus and any
amendments or supplements thereto, (vi) the printing and delivery to
the Underwriters of copies of any Blue Sky or Legal Investment
Memoranda, (vii) any fees charged by rating agencies for the rating of
the Offered Securities, (viii) any expenses incurred by the Company in
connection with a "road show" presentation to potential investors,
(ix) all document production charges of counsel to the Underwriters
(but not including their fees for professional services in connection
with the preparation of this Agreement) and (x) any filing fees in
connection with any review of the offering of the Offered Securities
by the National Association of Securities Dealers, Inc.
6. Indemnification and Contribution. The Company agrees to indemnify
and hold harmless each Underwriter, each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act and each affiliate of any Underwriter within the
meaning of Rule 405 under the Securities Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
allegedly untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or allegedly untrue statement or omission based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Manager expressly for use therein; provided, however,
that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Offered Securities, any person controlling such Underwriter or any affiliate
of such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Offered Securities to such person, and
if the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such losses, claims, damages or liabilities.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the
Registration
14
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company by such Underwriter in writing through the
Manager expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto.
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Manager, in
the case of parties indemnified pursuant to the second preceding paragraph, and
by the Company, in the case of parties indemnified pursuant to the first
preceding paragraph. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there were to be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by the third sentence of
this paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall
15
not have reimbursed the indemnified party in accordance with such request prior
to the date of such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
To the extent the indemnification provided for in the first or
or second paragraph of this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Offered Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Offered Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of such Offered Securities (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters in respect thereof, in each case as set forth in
the table on the cover of the Prospectus Supplement, bear to the aggregate
public offering price of the Offered Securities. The relative fault of the
Company on the one hand and of the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or allegedly
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount
16
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
allegedly untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' respective
obligations to contribute pursuant to this Section 6 are several in proportion
to the respective amounts of Offered Securities purchased by each of such
Underwriters and not joint. The remedies provided for in this Section 6 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
7. Termination. This Agreement shall be subject to termination by notice
given by the Manager to the Company if, after the execution and delivery of the
Underwriting Agreement and prior to the Closing Date, (i) trading generally
shall have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, the Nasdaq
National Market, the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities of the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a material disruption in securities settlement, payment or
clearance services in the United States or, in the event of a global offering,
in any relevant foreign jurisdiction shall have occurred, (iv) any moratorium
on commercial banking activities shall have been declared by Federal or New
York State authorities or (v) there shall have occurred any outbreak or
escalation of hostilities or any change in financial markets or any calamity or
crisis that, in the judgment of the Manager, is material and adverse and which,
singly or together with any other event specified in this clause (v), makes it,
in the judgment of the Manager, impracticable or inadvisable to proceed with
the offer, sale or delivery of the Offered Securities on the terms and in the
manner contemplated in the Prospectus.
8. Defaulting Underwriters. If, on the Closing Date or the Option Closing
Date, as the case may be, any one or more of the Underwriters shall fail or
refuse to purchase Offered Securities that it has or they have agreed to
purchase hereunder on such date, and the aggregate number of Offered Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused
to
17
purchase is not more than one-tenth of the aggregate number of the Offered
Securities to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Offered
Securities set forth opposite their respective names in the Underwriting
Agreement bears to the aggregate number of Firm Offered Securities set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as the Manager may specify, to purchase the Offered Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase on such date; provided that in no event shall the number of Offered
Securities that any Underwriter has agreed to purchase pursuant to the
Underwriting Agreement be increased pursuant to this Section 8 by an amount in
excess of one-ninth of such number of Offered Securities without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Firm Offered Securities and the
aggregate number of Firm Offered Securities with respect to which such default
occurs is more than one-tenth of the aggregate number of Firm Offered
Securities to be purchased on such date, and arrangements satisfactory to the
Manager and the Company for the purchase of8 such Firm Offered Securities are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the Company.
In any such case either the Manager or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. If, on
the Option Closing Date, any Underwriter or Underwriters shall fail or refuse
to purchase Additional Offered Securities and the aggregate number of
Additional Offered Securities with respect to which such default occurs is more
than one-tenth of the aggregate number of Additional Offered Securities to be
purchased on such date, the non-defaulting Underwriters shall have the option
to (i) terminate their obligation hereunder to purchase Additional Offered
Securities or (ii) purchase not less than the number of Additional Offered
Securities that such non-defaulting Underwriters would have been obligated to
purchase in the absence of such default. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel)
18
reasonably incurred by such Underwriters in connection with this Agreement or
the offering of the Offered Securities.
9. Representations and Indemnities to Survive. The respective indemnity
and contribution agreements and the representations, warranties and other
statements of the Company, its officers and the Underwriters set forth in this
Agreement will remain in full force and effect, regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter or by or on behalf of
the Company, its officers or directors or any person controlling the Company
and (iii) acceptance of and payment for any of the Offered Securities.
10. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 6, and no
other person will have any right or obligation hereunder.
11. Counterparts. The Underwriting Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
12. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
13. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.