BLOCK FINANCIAL CORPORATION
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Debt Securities
Underwriting Agreement Standard Provisions
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Block Financial Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell from time to time certain of its debt securities (the
"Securities") registered under the Securities Act of 1933, as amended (the
"Act"). The Securities will be issued in one or more series pursuant to an
indenture, dated October 20, 1997, among H&R Block, Inc., a Missouri corporation
(the "Parent Guarantor"), the Company and Bankers Trust Company, as trustee (the
"Original Indenture"), as supplemented by the First Supplemental Indenture,
dated April 18, 2000, among the Company, the Parent Guarantor, Bankers Trust
Company, as trustee under the Original Indenture and The Bank of New York, as
separate trustee (the "First Supplemental Indenture," together with the Original
Indenture, as may be from time to time further supplemented, amended or
modified, the "Indenture"; and any trustee so designated in Schedule 2 to the
Underwriting Agreement (as defined below) with respect to any additional series
being hereinafter referred to as the "Trustee"). The Securities will be fully
and unconditionally guaranteed by the Parent Guarantor pursuant to guarantees
(the "Guarantee") endorsed on the Securities under the terms of the Indenture.
From time to time, the Company and the Parent Guarantor may enter into one
or more underwriting agreements in the form of Annex A hereto that incorporate
by reference these Standard Provisions (collectively with these Standard
Provisions, an "Underwriting Agreement") that provide for the sale of the
securities designated in such Underwriting Agreement (the "Securities") to the
several Underwriters named therein (the "Underwriters"), for whom the
Underwriter(s) named therein shall act as representative (the "Representative").
The Underwriting Agreement, including these Standard Provisions, is sometimes
referred to herein as this "Agreement."
The obligations of the Underwriters under this Agreement are several and
not joint.
1. Registration Statement. The Company and the Parent Guarantor have
prepared and filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Securities Act"), a
registration statement on Form S-3 (File No. 333-33655) and a registration
statement on Form S-3 (File No. 333-11802001), which registration statement
includes a combined prospectus covering both registration statements pursuant to
Rule 429 of the Securities Act (the "Basic Prospectus"), relating to the debt
securities to be issued from time to time by the Company. The Company and the
Parent Guarantor have also filed, or propose to file,
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with the Commission pursuant to Rule 424 under the Securities Act a prospectus
supplement specifically relating to the Securities (the "Prospectus
Supplement"). The registration statement, as amended at the time it becomes
effective, including the information, if any, deemed pursuant to Rule 430A under
the Securities Act to be part of the registration statement at the time of its
effectiveness ("Rule 430 Information"), is referred to herein as the
"Registration Statement"; and as used herein, the term "Prospectus" means the
Basic Prospectus as supplemented by the prospectus supplement specifically
relating to the Securities in the form first used to confirm sales of the
Securities and the term "Preliminary Prospectus" means the preliminary
prospectus supplement specifically relating to the Securities together with the
Basic Prospectus. If the Company or the Parent Guarantor has filed an
abbreviated registration statement pursuant to Rule 462(b) under the Securities
Act (the "Rule 462 Registration Statement"), then any reference herein to the
term "Registration Statement" shall be deemed to include such Rule 462
Registration Statement. Capitalized terms used but not defined herein shall have
the meanings given to such terms in the Registration Statement and the
Prospectus. References herein to the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein as used herein with respect
to the Registration Statement, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed by the Parent
Guarantor under the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission thereunder (the "Exchange Act") subsequent to
the date of the Underwriting Agreement which are deemed to be incorporated by
reference therein. For purposes of this Agreement, the term "Effective Time"
means the date and time the Registration Statement became effective, and, if
later, the date of filing of the Parent Guarantor's most recent Annual Report on
Form 10-K.
2. Purchase of the Securities by the Underwriters. (a) The Company agrees
to issue and sell the Securities to the several Underwriters named in the
Underwriting Agreement, and each Underwriter, on the basis of the
representations, warranties and agreements set forth herein and subject to the
conditions set forth herein, agrees, severally and not jointly, to purchase from
the Company the respective principal amount of Securities set forth opposite
such Underwriter's name in the Underwriting Agreement at the purchase price set
forth in the Underwriting Agreement.
(b) Payment of the purchase price for and delivery of the Securities
will be made at the time and place set forth in the Underwriting Agreement. The
time and date of such payment and delivery is referred to herein as the "Closing
Date".
3. Representations and Warranties of the Company. The Company and the
Parent Guarantor jointly and severally represent and warrant to each Underwriter
that:
(a) Registration Statement and Prospectus. The Registration Statement
has become effective under the Securities Act; no order suspending the
effectiveness of the Registration Statement has been issued by the Commission
and, to the Company's knowledge, no proceeding for that purpose is pending or
threatened by
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the Commission; as of the Effective Time, the Registration Statement did, and
when the Prospectus is filed in accordance with Rule 424(b) of the Securities
Act and on the Closing Date, the Prospectus (and any amendments and supplements
thereto) will, comply in all material respects with the Securities Act, the
Exchange Act and the Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Trust Indenture
Act"); at the Effective Time and as of the date of this Agreement, the
Registration Statement did not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading; at the Effective Time and
on the Closing Date, the Indenture did or will comply in all material respects
with the requirements of the Trust Indenture Act and the rules thereunder; and,
as of the date of the Prospectus and any amendment or supplement thereto and as
of the Closing Date, the Prospectus did not and will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided
that the Company and the Parent Guarantor make no representation and warranty
with respect to (i) that part of the Registration Statement that constitutes the
Statement of Eligibility and Qualification (Form T-1) of the Trustee under the
Trust Indenture Act or (ii) any statements or omissions in the Registration
Statement and the Prospectus and any amendment or supplement thereto made in
reliance upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representative expressly for use therein.
(b) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus, when
filed with the Commission, conformed or will conform, as the case may be, in all
material respects with the requirements of the Exchange Act 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,
in the light of the circumstances under which they were made, not misleading.
(c) Financial Statements. The financial statements and the related
notes thereto included or incorporated by reference in the Registration
Statement and the Prospectus comply in all material respects with the applicable
requirements of the Securities Act and the Exchange Act, as applicable, and
present fairly in all material respects the financial position of the Parent
Guarantor and its subsidiaries as of the dates indicated and the results of
their operations and the changes in their cash flows for the periods specified;
such financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods covered thereby, and the supporting schedules included or incorporated
by reference in the Registration Statement present fairly in all material
respects the information required to be stated therein; and the other financial
information included or incorporated by reference in the Registration Statement
and the Prospectus has been derived from the accounting records of the Parent
Guarantor and its subsidiaries and presents fairly in all material respects the
information shown thereby.
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(d) Legal Proceedings. Except as described in the Registration
Statement and the Prospectus, there are no legal, governmental or regulatory
investigations, actions, suits or proceedings pending to which the Parent
Guarantor or any of its subsidiaries is or may be a party or to which any
property of the Parent Guarantor or any of its subsidiaries is or may be the
subject as to which there is a reasonable possibility of an adverse
determination and that if determined adversely to the Parent Guarantor or any of
its subsidiaries, would reasonably be expected, individually or in the
aggregate, to have a material adverse effect on the business, properties,
management, financial position or results of operations of the Parent Guarantor
and its subsidiaries taken as a whole or on the performance by the Company and
the Parent Guarantor of its obligations under the Securities and the Guarantee
("Material Adverse Effect"); except as described in the Registration Statement
and the Prospectus, to the knowledge of the Company and the Parent Guarantor, no
such investigations, actions, suits or proceedings are threatened or
contemplated by any governmental or regulatory authority or threatened by
others; and (i) there are no current or pending legal, governmental or
regulatory actions, suits or proceedings that are required under the Securities
Act to be described in the Prospectus that are not so described and (ii) there
are no contracts or other documents that are required under the Securities Act
to be filed as exhibits to the Registration Statement or described in the
Registration Statement or the Prospectus that are not so filed or described,
except for those documents relating to the issuance of a particular series of
Securities, which will be filed on Form 8-K in connection with the closing of
the issuance of such Securities.
(e) Independent Accountants. KPMG LLP is (and PricewaterhouseCoopers
LLP was, when serving as the Parent Guarantor's and its subsidiaries'
independent auditors), independent public accountants with respect to the Parent
Guarantor and its subsidiaries and have certified certain financial statements
of the Parent Guarantor and its subsidiaries as required by the Securities Act.
(f) Licenses and Permits. Except as described in the Registration
Statement and the Prospectus, the Parent Guarantor and its subsidiaries possess
all licenses, certificates, permits and other authorizations issued by, and have
made all declarations and filings with, the appropriate federal, state, local or
foreign governmental or regulatory authorities that are necessary for the
ownership or lease of their respective properties or the conduct of their
respective businesses as described in the Registration Statement and the
Prospectus, except where the failure to possess or make the same would not,
individually or in the aggregate, have a Material Adverse Effect.
(g) Sarbanes-Oxley Act of 2002. The Parent Guarantor is in compliance
in all material respects with the applicable provisions of the Sarbanes-Oxley
Act of 2002 that are effective and the rules and regulations of the Commission
that have been adopted and are effective thereunder.
Any certificate signed by any officer of the Company or the Parent
Guarantor and delivered to the Representative or counsel for the Underwriters in
connection with the offering of the Securities (including the Guarantee) shall
be deemed a
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representation and warranty by the Company and the Parent Guarantor, as to
matters covered thereby, to each Underwriter.
4. Further Agreements of the Company and the Parent Guarantor. The Company,
and to the extent expressly referred to in the paragraphs below, the Parent
Guarantor jointly and severally covenant and agree with each Underwriter that:
(a) Filings with the Commission. The Company and the Parent Guarantor
will (i) prepare the Rule 462(b) Registration Statement, if necessary, in a form
approved by the Underwriters and file such Rule 462(b) Registration Statement
with the Commission in compliance with Rule 462(b) under the Securities Act by
10:00 a.m. New York City time on the business day immediately following the date
of determination of the public offering price of the Securities and, at the time
of filing, either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment of such
fee pursuant to Rule 111(b) under the Securities Act and (ii) file the
Prospectus in a form approved by the Underwriters with the Commission pursuant
to Rule 424 under the Securities Act not later than the close of business on the
second business day following the date of determination of the public offering
price of the Securities or, if applicable, such earlier time as may be required
by Rule 424(b) and Rule 430A under the Securities Act; and the Company and the
Parent Guarantor will furnish copies of the Prospectus to the Underwriters in
New York City on the business day next succeeding the date of this Agreement in
such quantities as the Representative may reasonably request.
(b) Delivery of Copies. The Company and the Parent Guarantor will
furnish, without charge, to each Underwriter during the Prospectus Delivery
Period, as many copies of the Prospectus (including all amendments and
supplements thereto) as the Representative may reasonably request. As used
herein, the term "Prospectus Delivery Period" means such period of time after
the first date of the public offering of the Securities as in the opinion of
counsel for the Underwriters a prospectus relating to the Securities is required
by law to be delivered in connection with sales of the Securities by any
Underwriter or dealer.
(c) Amendments or Supplements. Before filing any amendment or
supplement to the Registration Statement or the Prospectus, the Company and the
Parent Guarantor will furnish to the Representative and counsel for the
Underwriters a copy of the proposed amendment or supplement for review and will
not file any such proposed amendment or supplement to which the Representative
reasonably objects.
(d) Notice to the Representative. The Company and the Parent Guarantor
will advise the Representative promptly, and confirm such advice in writing, (i)
when any amendment to the Registration Statement has been filed or becomes
effective; (ii) when any supplement to the Prospectus or any amendment to the
Prospectus has been filed; (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or the receipt of any comments from the Commission relating to the
Registration Statement or any other request by the Commission for any additional
information; (iv) of the issuance
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by the Commission of any order suspending the effectiveness of the Registration
Statement or preventing or suspending the use of any Preliminary Prospectus or
the Prospectus or the initiation or threatening of any proceeding for that
purpose; (v) of the occurrence of any event within the Prospectus Delivery
Period as a result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances existing when the Prospectus is
delivered to a purchaser, not misleading; and (vi) of the receipt by the Company
or the Parent Guarantor of any notice with respect to any suspension of the
qualification of the Securities for offer and sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and the Company
and the Parent Guarantor will use their reasonable best efforts to prevent the
issuance of any such order suspending the effectiveness of the Registration
Statement, preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or suspending any such qualification of the Securities and, if any
such order is issued, will use its reasonable best efforts to obtain as soon as
possible the withdrawal thereof.
(e) Ongoing Compliance of the Prospectus. If during the Prospectus
Delivery Period (i) any event shall occur or condition shall exist as a result
of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary 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 (ii) it is necessary to amend or supplement the
Prospectus to comply with law, the Company and the Parent Guarantor will
immediately notify the Underwriters thereof and forthwith prepare and, subject
to paragraph (c) above, file with the Commission and furnish to the Underwriters
and to such dealers as the Representative may designate, such amendments or
supplements to the Prospectus as may be necessary so that the statements in the
Prospectus as 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 will comply with law.
(f) Blue Sky Compliance. The Company and the Parent Guarantor will
qualify the Securities for offer and sale under the securities or Blue Sky laws
of such jurisdictions as the Representative shall reasonably request and will
continue such qualifications in effect so long as required for distribution of
the Securities; provided that neither the Company nor the Parent Guarantor shall
be required to (i) qualify as a foreign corporation or other entity or as a
dealer in securities in any such jurisdiction where it would not otherwise be
required to so qualify, (ii) file any general consent to service of process in
any such jurisdiction or (iii) subject itself to taxation in any such
jurisdiction if it is not otherwise so subject.
(g) Earning Statement. The Parent Guarantor will make generally
available to its security holders and the Representative as soon as practicable
an earning statement that satisfies the provisions of Section 11(a) of the
Securities Act and Rule 158 of the Commission promulgated thereunder covering a
period of at least
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twelve months beginning with the first fiscal quarter of the Parent Guarantor
occurring after the "effective date" (as defined in Rule 158) of the
Registration Statement.
(h) Clear Market. During the period from the date hereof through and
including the Closing Date or such later date as is specified in the
Underwriting Agreement, the Company and the Parent Guarantor will not, without
the prior written consent of the Representative, offer, sell, contract to sell
or otherwise dispose of any debt securities issued or guaranteed by the Company
or the Parent Guarantor and having a tenor of more than one year (other than the
Securities).
(i) Use of Proceeds. The Company will apply the net proceeds from the
sale of the Securities as described in the Prospectus under the heading "Use of
Proceeds."
(j) Filing of Exchange Act Documents. The Parent Guarantor will file
promptly all reports and any definitive proxy or information statements required
to be filed by the Parent Guarantor with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act during the Prospectus Delivery
Period.
5. Conditions of Underwriters' Obligations. The obligation of each
Underwriter to purchase Securities on the Closing Date as provided herein is
subject to the performance by the Company and the Parent Guarantor of their
respective covenants and other obligations hereunder and to the following
additional conditions:
(a) Registration Compliance; No Stop Order. If a post-effective
amendment to the Registration Statement is required to be filed under the
Securities Act, such post-effective amendment shall have become effective, and
the Representative shall have received notice thereof, not later than 5:00 P.M.,
New York City time, on the date of the Underwriting Agreement; if applicable,
the Rule 462(b) Registration Statement shall have become effective by 10:00 a.m.
New York City time on the business day following the date of the Underwriting
Agreement; no order suspending the effectiveness of the Registration Statement
shall be in effect, and no proceeding for such purpose shall be pending before
or threatened by the Commission; the Prospectus shall have been timely filed
with the Commission under the Securities Act and in accordance with Section 4(a)
hereof; and all requests by the Commission for additional information shall have
been complied with to the reasonable satisfaction of the Representative.
(b) Representations and Warranties. The representations and warranties
of the Company and the Parent Guarantor contained herein shall be true and
correct on the date hereof and on and as of the Closing Date; the statements of
the Company, the Parent Guarantor and their respective officers made in any
certificates delivered pursuant to this Agreement shall be true and correct on
and as of the Closing Date.
(c) No Downgrade. Subsequent to the execution and delivery of this
Agreement, (i) no downgrading shall have occurred in the rating accorded the
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Securities or any other debt securities or preferred stock of or guaranteed by
the Company or the Parent Guarantor by any "nationally recognized statistical
rating organization", as such term is defined by the Commission for purposes of
Rule 436(g)(2) under the Securities Act and (ii) no such organization shall have
publicly announced that it has under surveillance or review, or has changed its
outlook with respect to, its rating of the Securities or of any other debt
securities or preferred stock of or guaranteed by the Company or the Parent
Guarantor (other than an announcement with positive implications of a possible
upgrading).
(d) No Material Adverse Change. Subsequent to the execution and
delivery of this Agreement, no Material Adverse Change (as defined below) shall
have occurred or shall exist, which event or condition is not described in the
Prospectus (excluding any amendment or supplement thereto) and the effect of
which in the judgment of the Representative makes it impracticable or
inadvisable to proceed with the offering, sale or delivery of the Securities on
the terms and in the manner contemplated by this Agreement and the Prospectus.
For purposes of this Section 5(d), a "Material Adverse Change" shall mean (i)
any material change in the consolidated long-term debt of the Parent Guarantor,
or any material adverse change, or a prospective material adverse change, in or
affecting the business, properties, management, financial position or results of
operations of the Parent Guarantor and its subsidiaries taken as a whole; (ii)
the Parent Guarantor or any of its subsidiaries entering into any transaction or
agreement that is materially adverse to the Parent Guarantor and its
subsidiaries taken as a whole or the incurrence of any liability or obligation,
direct or contingent, that is material to the Parent Guarantor and its
subsidiaries taken as a whole; or (iii) the Parent Guarantor or any of its
subsidiaries has sustained any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor disturbance or dispute or from any action, order or
decree of any court or arbitrator or governmental or regulatory authority,
except in each case as otherwise disclosed in the Registration Statement and the
Prospectus.
(e) Officer's Certificate. The Representative shall have received on
and as of the Closing Date a certificate of an executive officer of the Company
and the Parent Guarantor who has specific knowledge of the Company's or Parent
Guarantor's financial matters and is satisfactory to the Representative (i)
confirming that such officer has carefully reviewed the Registration Statement
and the Prospectus and, to the knowledge of such officer, the representation set
forth in Section 3(a) hereof is true and correct, (ii) confirming that the other
representations and warranties of the Company and the Parent Guarantor in this
Agreement are true and correct and that the Company and the Parent Guarantor
have complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date and (iii) to
the effect set forth in paragraphs (a), (c) and (d) above.
(f) Comfort Letters. On the date of this Agreement and on the Closing
Date, KPMG shall have furnished to the Representative, at the request of the
Company, letters, dated the respective dates of delivery thereof and addressed
to the Underwriters, in form and substance reasonably satisfactory to the
Representative,
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containing statements and information of the type customarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained or incorporated by
reference in the Registration Statement and the Prospectus; provided that the
letter delivered on the Closing Date shall use a "cut-off" date no more than
three business days prior to the Closing Date.
(g) Opinion of Counsel for the Company and the Parent Guarantor.
Stinson, Morrison Hecker LLP, counsel for the Company and the Parent Guarantor,
shall have furnished to the Representative, at the request of the Company and
the Parent Guarantor, their written opinion, dated the Closing Date and
addressed to the Underwriters, in form and substance reasonably satisfactory to
the Representative, to the effect set forth in Annex B hereto.
(h) Opinion of Counsel for the Underwriters. The Representative shall
have received on and as of the Closing Date an opinion of Simpson Thacher &
Bartlett LLP, counsel for the Underwriters, with respect to such matters as the
Representative may reasonably request, and such counsel shall have received such
documents and information as they may reasonably request to enable them to pass
upon such matters.
(i) No Legal Impediment to Issuance. No action shall have been taken
and no statute, rule, regulation or order shall have been enacted, adopted or
issued by any federal, state or foreign governmental or regulatory authority
that would, as of the Closing Date, prevent the issuance or sale of the
Securities or the issuance of the Guarantee; and no injunction or order of any
federal, state or foreign court shall have been issued that would, as of the
Closing Date, prevent the issuance or sale of the Securities or the issuance of
the Guarantee.
(j) Good Standing. The Representative shall have received on and as of
the Closing Date satisfactory evidence of the good standing of the Company and
the Parent Guarantor in their respective jurisdictions of organization, in each
case in writing or any standard form of telecommunication from the appropriate
governmental authorities of such jurisdictions.
(k) Additional Documents. On or prior to the Closing Date, the Company
and the Parent Guarantor shall have furnished to the Representative such further
certificates and documents as the Representative may reasonably request.
All opinions, letters, certificates and evidence mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
6. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company and the Parent
Guarantor jointly and severally agree to indemnify and hold harmless each
Underwriter, its affiliates, directors and officers and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the
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Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, reasonable legal fees and other
expenses incurred in connection with any suit, action or proceeding or any claim
asserted as such fees and expenses are incurred), joint or several, that arise
out of, or are based upon, any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (or any
amendment or supplement thereto) or any Preliminary Prospectus, or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except insofar as
such losses, claims, damages or liabilities arise out of, or are based upon, any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information relating to any Underwriter
furnished to the Company and the Parent Guarantor in writing by such Underwriter
through the Representative expressly for use therein; provided, that with
respect to any such untrue statement in or omission from any Preliminary
Prospectus, the indemnity agreement contained in this paragraph (a) shall not
inure to the benefit of any Underwriter to the extent that the sale to the
person asserting any such loss, claim, damage or liability was an initial resale
by such Underwriter and any such loss, claim, damage or liability of or with
respect to such Underwriter results from the fact that both (i) to the extent
required by applicable law, a copy of the Prospectus was not sent or given to
such person at or prior to the written confirmation of the sale of such
Securities to such person and (ii) the untrue statement in or omission from such
Preliminary Prospectus was corrected in the Prospectus unless, in either case,
such failure to deliver the Prospectus was a result of non-compliance by the
Company or the Parent Guarantor with the provisions of Section 4 hereof.
(b) Indemnification of the Company and the Parent Guarantor. Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, the Parent Guarantor and each of their respective officers and
directors who signed the Registration Statement and each person, if any, who
controls the Company or the Parent Guarantor within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act to the same extent as the
indemnity set forth in paragraph (a) above, but only with respect to any losses,
claims, damages or liabilities that arise out of, or are based upon, any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with any information relating to such Underwriter
furnished to the Company or the Parent Guarantor in writing by such Underwriter
through the Representative expressly for use in the Registration Statement and
the Prospectus (or any amendment or supplement thereto) or any Preliminary
Prospectus, it being understood and agreed that the only such information
consists of the information identified in the Underwriting Agreement as being
provided by the Underwriters.
(c) Notice and Procedures. If any suit, action, proceeding (including
any governmental or regulatory investigation), claim or demand shall be brought
or asserted against any person in respect of which indemnification may be sought
pursuant to either paragraph (a) or (b) above, such person (the "Indemnified
Person") shall promptly notify the person against whom such indemnification may
be sought (the
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"Indemnifying Person") in writing; provided that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have
under this Section 6 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and
provided, further, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person
otherwise than under paragraphs (a) and (b) of this Section 6. If any such
proceeding shall be brought or asserted against an Indemnified Person and it
shall have notified the Indemnifying Person thereof, the Indemnifying Person
shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others entitled to indemnification
pursuant to this Section 6 that the Indemnifying Person may designate in such
proceeding and shall pay the fees and expenses of such counsel related to such
proceeding as incurred. In any such proceeding, any Indemnified Person 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 Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary; (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person; (iii) the
Indemnified Person shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those
available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding 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 Indemnified Persons, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for any Underwriter, its affiliates, directors and officers and
any control persons of such Underwriter shall be designated in writing by the
Representative and any such separate firm for the Company, the Parent Guarantor
or any of their respective directors or officers who signed the Registration
Statement and any control persons of the Company or the Parent Guarantor shall
be designated in writing by the Parent Guarantor. The Indemnifying Person shall
not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested that an Indemnifying Person reimburse the
Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by the Indemnifying Person of such
request, (ii) the Indemnifying Party has received notice of the terms of the
settlement at least 30 days prior to the settlement being entered into and (iii)
the Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time
12
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, an indemnifying party shall
not be liable for any settlement of the nature contemplated by Section 6(a)(ii)
effected without its consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent it considers
such request to be reasonable and (ii) provides written notice to the
indemnified party substantiating the unpaid balance as unreasonable, in each
case prior to the date of such settlement. No Indemnifying Person shall, without
the written consent of the Indemnified Person, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Person is
or could have been a party and indemnification could have been sought hereunder
by such Indemnified Person, unless such settlement (x) includes an unconditional
release of such Indemnified Person, in form and substance reasonably
satisfactory to such Indemnified Person, from all liability on claims that are
the subject matter of such proceeding and (y) does not include any statement as
to or any admission of fault, culpability or a failure to act by or on behalf of
any Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs
(a) and (b) above is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person 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 and the Parent Guarantor on the one hand and
the Underwriters on the other from the offering of the Securities 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) but also the relative fault of the Company and the Parent
Guarantor on the one hand and the Underwriters on the other 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 and the Parent Guarantor on the one
hand and the Underwriters on the other shall be deemed to be in the same
respective proportions as the net proceeds (before deducting expenses) received
by the Company from the sale of the Securities and the total underwriting
discounts and commissions received by the Underwriters in connection therewith,
in each case as set forth in the table on the cover of the Prospectus, bear to
the aggregate offering price of the Securities. The relative fault of the
Company and the Parent Guarantor on the one hand and the Underwriters on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
and the Parent Guarantor or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) Limitation on Liability. The Company, the Parent Guarantor and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 6 were determined by pro rata allocation (even if the
Underwriters were
13
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
paragraph (d) above. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in paragraph
(d) above shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with any such action or claim. Notwithstanding the provisions of this
Section 6, in no event shall an Underwriter be required to contribute any amount
in excess of the amount by which the total underwriting discounts and
commissions received by such Underwriter with respect to the offering of the
Securities exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 6 are several in proportion to their respective purchase obligations
hereunder and not joint.
(f) Non-Exclusive Remedies. 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 Person at law or in equity.
7. Termination. This Agreement may be terminated in the absolute
discretion of the Representative, by notice to the Company, if after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on the New
York Stock Exchange or the over-the-counter market; (ii) trading of any
securities issued or guaranteed by the Company or the Parent Guarantor shall
have been suspended on any exchange or in any over-the-counter market; (iii) a
general moratorium on commercial banking activities shall have been declared by
federal or New York State authorities; or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis, either within or outside the United States, that, in the
judgment of the Representative, is material and adverse and makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of
the Securities on the terms and in the manner contemplated by this Agreement and
the Prospectus.
8. Defaulting Underwriter. (a) If, on the Closing Date, any
Underwriter defaults on its obligation to purchase the Securities that it has
agreed to purchase hereunder, the non-defaulting Underwriters may in their
discretion arrange for the purchase of such Securities by other persons
satisfactory to the Company on the terms contained in this Agreement. If, within
36 hours after any such default by any Underwriter, the non-defaulting
Underwriters do not arrange for the purchase of such Securities, then the
Company shall be entitled to a further period of 36 hours within which to
procure other persons satisfactory to the non-defaulting Underwriters to
purchase such Securities on such terms. If other persons become obligated or
agree to purchase the Securities of a defaulting Underwriter, either the
non-defaulting Underwriters or the Company may postpone the Closing Date for up
to five full business days in order to effect any changes that in the opinion of
counsel for the Company or counsel for the
14
Underwriters may be necessary in the Registration Statement and the Prospectus
or in any other document or arrangement, and the Company agrees to promptly
prepare any amendment or supplement to the Registration Statement and the
Prospectus that effects any such changes. As used in this Agreement, the term
"Underwriter" includes, for all purposes of this Agreement unless the context
otherwise requires, any person not listed in the Underwriting Agreement that,
pursuant to this Section 8, purchases Securities that a defaulting Underwriter
agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of
the Securities of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters and the Company as provided in paragraph (a) above, the aggregate
principal amount of such Securities that remains unpurchased does not exceed 10%
of the aggregate principal amount of all the Securities, then the Company shall
have the right to require each non-defaulting Underwriter to purchase the
principal amount of Securities that such Underwriter agreed to purchase
hereunder plus such Underwriter's pro rata share (based on the principal amount
of Securities that such Underwriter agreed to purchase hereunder) of the
Securities of such defaulting Underwriter or Underwriters for which such
arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of
the Securities of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters and the Company as provided in paragraph (a) above, the aggregate
principal amount of such Securities that remains unpurchased exceeds 10% of the
aggregate principal amount of all the Securities, or if the Company shall not
exercise the right described in paragraph (b) above, then this Agreement shall
terminate without liability on the part of the non-defaulting Underwriters. Any
termination of this Agreement pursuant to this Section 8 shall be without
liability on the part of the Company or the Parent Guarantor, except that the
Company and the Parent Guarantor will continue to be liable for the payment of
expenses as set forth in Section 9(a) hereof.
(d) Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company, the Parent Guarantor or any
non-defaulting Underwriter for damages caused by its default.
9. Payment of Expenses. (a) Whether or not the transactions contemplated by
this Agreement are consummated or this Agreement is terminated, the Company and
the Parent Guarantor, jointly and severally agree to pay or cause to be paid all
costs and expenses incident to the performance of its obligations hereunder,
including without limitation, (i) the costs incident to the authorization,
issuance, sale, preparation and delivery of the Securities and any taxes payable
in that connection; (ii) the costs incident to the preparation, printing and
filing under the Securities Act of the Registration Statement, the Preliminary
Prospectus and the Prospectus (including all exhibits, amendments and
supplements thereto) and the distribution thereof; (iii) the costs of
reproducing and distributing each of this Agreement, the Securities and the
Indenture (including the Guarantee set forth therein) (collectively, the
"Transaction Documents"); (iv) the fees and expenses of the Company's and the
Parent Guarantor's counsel and independent accountants; (v) the fees and
expenses incurred in connection with the
15
registration or qualification and determination of eligibility for investment of
the Securities under the laws of such jurisdictions as the Representative may
designate and the preparation, printing and distribution of a Blue Sky
Memorandum (including the related fees and expenses of counsel for the
Underwriters); (vi) any fees charged by rating agencies for rating the
Securities; (vii) the fees and expenses of the Trustee and any paying agent
(including related fees and expenses of any counsel to such parties); (viii) all
expenses and application fees incurred in connection with any filing with, and
clearance of any offering by, the National Association of Securities Dealers,
Inc.; and (ix) all expenses incurred by the Company in connection with any "road
show" presentation to potential investors.
(b) If (i) this Agreement is terminated pursuant to Section 7, (ii)
the Company and the Parent Guarantor for any reason fails to tender the
Securities for delivery to the Underwriters or (iii) the Underwriters decline to
purchase the Securities because any condition to the obligation of the
underwriters set forth in Section 5 is not satisfied, the Company and the Parent
Guarantor, jointly and severally agree to reimburse the Underwriters for all
out-of-pocket costs and expenses (including the fees and expenses of their
outside counsel) reasonably incurred by the Underwriters in connection with this
Agreement and the offering contemplated hereby promptly upon receipt of an
itemized invoice of such out-of-pocket costs and expenses.
16
10. Persons Entitled to Benefit of Agreement. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and any controlling persons referred
to herein, and the affiliates of each Underwriter referred to in Section 6
hereof. Nothing in this Agreement is intended or shall be construed to give any
other person any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision contained herein. No purchaser of Securities
from any Underwriter shall be deemed to be a successor merely by reason of such
purchase.
11. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company, the Parent Guarantor
and the Underwriters contained in this Agreement or made by or on behalf of the
Company, the Parent Guarantor or the Underwriters pursuant to this Agreement or
any certificate delivered pursuant hereto shall survive the delivery of and
payment for the Securities and shall remain in full force and effect, regardless
of any termination of this Agreement or any investigation made by or on behalf
of the Company, the Parent Guarantor or the Underwriters.
12. Certain Defined Terms. For purposes of this Agreement, (a) except where
otherwise expressly provided, the term "affiliate" has the meaning set forth in
Rule 405 under the Securities Act; (b) the term "business day" means any day
other than a day on which banks are permitted or required to be closed in New
York City; and (c) the term "subsidiary" or "subsidiaries" has the meaning set
forth in Rule 405 under the Securities Act.
13. Miscellaneous. (a) Authority of the Representative. Any action by the
Underwriters hereunder may be taken by the Representative on behalf of the
Underwriters, and any such action taken by the Representative shall be binding
upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed or transmitted
and confirmed by any standard form of telecommunication. Notices to the
Underwriters shall be given to the Representative at the address set forth in
the Underwriting Agreement (with copy to Simpson Thacher & Bartlett LLP, 425
Lexington Avenue, New York, New York 10017, attention of Jeremiah L. Thomas
III). Notices to the Company or the Parent Guarantor shall be given to it at H&R
Block World Headquarters, 4400 Main Street, Kansas City, Missouri 64111, (fax:
(816) 753-8538); Attention: HRB Treasury, with copy to the HRB General Counsel
of the Company at the same address, or if different, to the address set forth in
the Underwriting Agreement (with copy to Stinson Morrison Hecker LLP, 1201
Walnut Street, Kansas City, Missouri 64106, attention of Patrick J. Respeliers).
(c) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
17
(d) Amendments or Waivers. No amendment or waiver of any provision of
this Agreement, nor any consent or approval to any departure therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
parties hereto.
(e) Headings. The headings herein are included for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
(f) Entire Agreement. This Agreement embodies the entire agreement
between the parties hereto and there are no agreements, representations or
warranties between the parties other than those set forth or provided herein.
Annex A
[Form of Underwriting Agreement]
Underwriting Agreement
----------------------
______________, 200__
[Name(s) of Representative(s)]
As Representative(s) of the
several Underwriters listed
in Schedule 1 hereto
c/o [Name(s) and Address(es) of Representative(s)]
Ladies and Gentlemen:
Block Financial Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell to the several Underwriters listed in Schedule 1
hereto (the "Underwriters"), for whom you are acting as representative (the
"Representative"), $____________ principal amount of its _____% [Senior]
[Subordinated] Notes due 20__ having the terms set forth in Schedule 2 hereto
(the "Securities"). The Securities are to be issued pursuant to an indenture
(the "Indenture"), dated October 20, 1997, among H&R Block, Inc., a Missouri
corporation (the "Parent Guarantor"), the Company and Bankers Trust Company, as
trustee, as supplemented by the First Supplemental Indenture, dated April 18,
2000, among the Company, the Parent Guarantor, Bankers Trust Company and The
Bank of New York, as separate trustee (as may be further supplemented, amended
or modified). The Securities will be fully and unconditionally guaranteed by the
Parent Guarantor pursuant to guarantees (the "Guarantee") endorsed on the
Securities under the terms of the Indenture.
The Company agrees to issue and sell the Securities to the several
Underwriters as provided in this Agreement, and each Underwriter, on the basis
of the representations, warranties and agreements set forth herein and subject
to the conditions set forth herein, agrees, severally and not jointly, to
purchase from the Company the respective principal amount of Securities set
forth opposite such Underwriter's name in Schedule 1 hereto at a price equal to
_____% of the principal amount thereof plus accrued interest, if any, from
______________, 200__ to the Closing Date (as defined below). The Company will
not be obligated to deliver any of the Securities except upon payment for all
the Securities to be purchased as provided herein.
The Company and the Parent Guarantor understand that the Underwriters
intend to make a public offering of the Securities as soon after the
effectiveness of this Agreement as in the judgment of the Representative is
advisable, and initially to offer the Securities on the terms set forth in the
Prospectus. The Company and the Parent Guarantor acknowledge and agree that the
Underwriters may offer and sell Securities
A-1
to or through any affiliate of an Underwriter and that any such affiliate may
offer and sell Securities purchased by it to or through any Underwriter.
Payment for and delivery of the Securities shall be made at the
offices of [specify closing location] at 10:00 A.M., New York City time, on
_____________, 200__, or at such other time or place on the same or such other
date, not later than the fifth business day thereafter, as the Representative
and the Company may agree upon in writing.
Payment for the Securities shall be made by wire transfer in
immediately available funds to the account(s) specified by the Company to the
Representative against delivery to the nominee of The Depository Trust Company,
for the account of the Underwriters, of one or more global notes representing
the Securities (collectively, the "Global Note"), with any transfer taxes
payable in connection with the sale of the Securities duly paid by the Company.
The Global Note will be made available for inspection by the Representative not
later than 1:00 P.M., New York City time, on the business day prior to the
Closing Date.
The Company, the Parent Guarantor and the Underwriters acknowledge
and agree that the only information relating to any Underwriter that has been
furnished to the Company or the Parent Guarantor in writing by any Underwriter
through the Representative expressly for use in the Registration Statement and
the Prospectus (or any amendment or supplement thereto) [and any Preliminary
Prospectus] consists of the following: [insert references to appropriate
paragraphs].
Unless otherwise provided herein, all the provisions contained in the
document entitled Block Financial Corporation Debt Securities Underwriting
Agreement Standard Provisions are incorporated by reference herein in their
entirety and shall be deemed to be a part of this Underwriting Agreement to the
same extent as if such provisions had been set forth in full herein, except that
if any term defined in such Underwriting Agreement Standard Provisions is
otherwise defined herein, the definition set forth herein shall control.
This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which
shall be an original and all of which together shall constitute one and the same
instrument.
A-2
If the foregoing is in accordance with your understanding, please
sign and return to us a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement among the Company, the
Parent Guarantor and the several Underwriters.
Very truly yours,
BLOCK FINANCIAL CORPORATION
By____________________________
Name:
Title:
H&R BLOCK, INC.
By____________________________
Name:
Title:
Accepted: __________, 200__
[NAME(S) OF REPRESENTATIVE(S)]
For [itself] [themselves] and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
By___________________________
Authorized Signatory
A-3
Schedule 1
Underwriter Principal Amount
----------- ----------------
$
Total _________________
$
A-4
Schedule 2
Underwriting Agreement dated ____, 20__
Registration Statement No[s].: ___________
Representative(s) and Address(es) for Notices:
Designated Trustee: _______________
Certain Terms of the Securities:
Title of Securities:_____% [Senior][Subordinated] Notes due 20__
Aggregate Principal Amount of Securities: $____________
Purchase Price (include accrued interest or amortization, if any): _______
Maturity Date: ___________, 20__
Interest Rate: ____%
Interest Payment Dates: ________ and ________, commencing
________, 200_
Record Dates: ________ and ________
Redemption Provisions:
Closing Date, Time and Location: _______________
[Other Provisions:]
A-5
Annex B
[Form of Opinion of Counsel for the Company and the Parent Guarantor]
(-) The Company and the Parent Guarantor have been duly incorporated and
are validly existing and in good standing under the laws of the jurisdictions in
which they were chartered or organized, with the corporate power and authority
to own their material properties and conduct their respective business as
described in the Prospectus, and are duly qualified to do business and are in
good standing in each jurisdiction in which their respective ownership or
leasing of property or the conduct of their respective businesses requires such
qualification, except where the failure to be so qualified or have such power or
authority would not, individually or in the aggregate, have a Material Adverse
Effect.
(-) The Parent Guarantor has an authorized capitalization as set forth in
the Prospectus under the heading "Capitalization."
(-) The Company and the Parent Guarantor have the corporate power and
authority to execute and deliver each of the Transaction Documents and to
perform their respective obligations thereunder; and all corporate action
required to be taken for the due and proper authorization, execution and
delivery of each of the Transaction Documents and the consummation of the
transactions contemplated thereby has been duly and validly taken.
(-) The Indenture has been duly authorized, executed and delivered by the
Company and the Parent Guarantor and, assuming due execution and delivery
thereof by the Trustee, constitutes a valid and legally binding agreement of the
Company and the Parent Guarantor enforceable against the Company and the Parent
Guarantor in accordance with its terms, subject to the Enforceability
Exceptions.
(-) The Securities have been duly authorized, executed and delivered by the
Company and, when duly authenticated as provided in the Indenture and paid for
as provided in this Agreement, will be duly and validly issued and outstanding
and will constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms, subject to the
Enforceability Exceptions, and will be entitled to the benefits of the
Indenture; and the Guarantee has been duly authorized and endorsed by the Parent
Guarantor and, when the Securities have been executed, authenticated, issued and
delivered as provided in the Indenture and paid for as provided in this
Agreement, will constitute valid and legally binding obligations of the Parent
Guarantor enforceable against the Parent Guarantor in accordance with their
terms, subject to the Enforceability Exceptions, and will be entitled to the
benefits of the Indenture.
(-) This Agreement has been duly authorized, executed and delivered by the
Company and the Parent Guarantor.
B-1
(-) The description of each Transaction Document contained in the
Registration Statement and the Prospectus constitutes a fair summary of the
material terms thereof.
(-) The execution, delivery and performance by the Company and the Parent
Guarantor of each of the Transaction Documents to which each is a party, the
issuance and sale of the Securities (including the Guarantee) and compliance by
the Company and the Parent Guarantor with the terms thereof and the consummation
of the transactions contemplated by the Transaction Documents will not (i)
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company, the Parent Guarantor or any subsidiary pursuant to, any of the terms or
provisions of any indenture, mortgage, deed of trust or loan agreement or other
agreement or instrument filed or incorporated by reference as an exhibit to the
Parent Guarantor's Annual Report on Form 10-K most recently filed with the
Commission or under any Form 10-Q or Form 8-K of the Parent Guarantor filed
since the filing of such Annual Report on Form 10-K, (ii) result in any
violation of the provisions of the charter or by-laws or similar organizational
documents of the Company or the Parent Guarantor, (iii) result in the violation
of any an existing obligation of the Parent Guarantor or the Company under any
existing court or administrative order, judgment or decree of which such counsel
has knowledge or (iv) result in the violation of any applicable provisions of
the federal laws of the United States (provided that such counsel need express
no opinion as to the anti-fraud provisions of the federal securities laws), the
laws of the State of Missouri or the General Corporation Law of the State of
Delaware, except, in the case of clauses (i), (iii) and (iv) above, for any such
conflict, breach or violation that would not, individually or in the aggregate,
have a Material Adverse Effect.
(-) No consent, approval, authorization, order, registration or
qualification of or with any federal, Missouri or Delaware court or arbitrator
or governmental or regulatory authority is required under federal or Missouri
law, or the General Corporation Law of the State of Delaware for the execution,
delivery and performance by the Company and the Parent Guarantor of each of the
Transaction Documents, the issuance and sale of the Securities (including the
Guarantee) and compliance by the Company and the Parent Guarantor with the terms
thereof and the consummation of the transactions contemplated by the Transaction
Documents, except for (i) the registration of the Securities under the
Securities Act, (ii) the qualification of the Indenture under the Trust
Indenture Act, (iii) such consents, approvals, authorizations, orders and
registrations or qualifications as may be required under applicable state
securities laws in connection with the purchase and distribution of the
Securities (including the Guarantee) by the Underwriters (as to which such
counsel need not express any opinion) and (iv) such as the failure to obtain or
make would not reasonably be expected, individually or in the aggregate, to have
a Material Adverse Effect.
(-) To the knowledge of such counsel, except as described in the
Prospectus, there are no pending legal, governmental or regulatory actions,
suits or proceedings
B-2
that are required under the Securities Act to be described in the Prospectus
that are not so described.
(-) Neither the Company nor the Parent Guarantor is and, after giving
effect to the offering and sale of the Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an "investment
company" or required to be registered as an "investment company" under the
Investment Company Act.
(-) The Registration Statement was declared effective under the Securities
Act and the Indenture was qualified under the Trust Indenture Act as of the date
and time specified in such opinion; [the Rule 462(b) Registration Statement was
filed with the Commission pursuant to Rule 462(b) under the Securities Act on
the date and time specified in such opinion;] the Prospectus was filed with the
Commission pursuant to the subparagraph of Rule 424(b) under the Securities Act
specified in such opinion on the date specified therein; and, to the knowledge
of such counsel, no order suspending the effectiveness of the Registration
Statement has been issued by the Commission and no proceeding for that purpose
has been initiated or threatened by the Commission.
(-) The Registration Statement as of the Effective Time and the Prospectus
and any amendments or supplements thereto, as of their respective dates,
appeared on their face, to be appropriately responsive, in all material
respects, to the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder (other than the financial statements
and related schedules and other financial or accounting data included therein or
omitted therefrom and excluding the documents incorporated therein by reference,
as to which such counsel need express no view).
Such counsel shall also state that they have participated in conferences
with officers and other representatives of the Company and the Parent Guarantor,
representatives of the independent accountants of the Company and the Parent
Guarantor, and representatives of the Underwriters, including counsel for the
Underwriters, at which the contents of the Registration Statement, the
Prospectus and any amendment or supplement thereto and related matters were
discussed; and, based upon such participation and review, and relying as to
materiality in part upon the factual statements of officers and other
representatives of the Company and the Parent Guarantor and representatives of
the Underwriters, no facts have come to the attention of such counsel to cause
such counsel to believe that the Registration Statement (except in each case for
the financial statements and related data and other financial or accounting data
or exhibits contained or incorporated by reference therein or omitted therefrom,
as to which such counsel need not comment), at the Effective Time, contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or that the Prospectus or any amendment or supplement thereto (except in each
case for the financial statements and related data and other financial or
accounting data or exhibits contained or incorporated by reference therein or
omitted therefrom, as to which such counsel need not comment), as of its date
and the Closing
B-3
Date included or includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
In rendering such opinion, such counsel may rely as to matters of fact on
certificates of responsible officers of the Company and the Parent Guarantor and
public officials that are furnished to the Underwriters.
The opinion of [counsel] described above shall be rendered to the
Underwriters at the request of the Company and the Parent Guarantor and shall so
state therein.
B-4