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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
August 23, 1996
MORGAN STANLEY GROUP INC.
(Exact name of registrant as specified in its charter)
DELAWARE 1-9085 13-2838811
(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification
incorporation) Number)
1585 BROADWAY, NEW YORK, NEW YORK 10036
(Address of principal executive offices including zip code)
(212) 761-4000
(Registrant's telephone number
including area code)
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ITEM 5. OTHER EVENTS
Attached and incorporated herein by reference as Exhibit 1-d is
the Form of Underwriting Agreement for Preferred Stock and Depositary Shares,
in connection with the issuance from time to time by Morgan Stanley Group Inc.
of Preferred Stock and Depositary Shares.
ITEM 7(C). EXHIBITS
1-d. Form of Underwriting Agreement for Preferred Stock and Depositary
Shares.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
MORGAN STANLEY GROUP INC.
(Registrant)
Date: August 23, 1996 By: /s/ Ralph L. Pellecchio
------------------------------
Ralph L. Pellecchio
Assistant Secretary
EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
1-d. Form of Underwriting Agreement for Preferred Stock
and Depositary Shares.
EXHIBIT 1-d
UNDERWRITING AGREEMENT
_______ __, 199_
MORGAN STANLEY GROUP INC.
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 Group Inc., a Delaware corporation (the "Company"), proposes
to [issue and sell ____________ shares of its ___% Cumulative Preferred Stock,
without par value, stated value $____ per share (the "Firm Offered
Securities")](*) [sell ______ Depositary Shares (the "Firm Offered
Securities"), each representing a [fraction] interest in its __% Cumulative
Preferred Stock, without par value, stated value $______ per share].(**) The
Company also proposes to [issue and sell not more than an additional
___________ shares of its ___% Cumulative Preferred Stock, without par value,
stated value $___ per share (the "Additional Offered Securities"),]* [issue
and sell not more than an additional ________ Depositary Shares (the
"Additional Offered Securities"), each representing a [fraction] interest in
its __% Cumulative Preferred Stock, without par value, stated value $______
per share,]** 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"].(*) [The
Depositary Shares will be issued by ______________ (the "Depositary") 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".](**)
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 ________ __, 199_ to the date of payment
and delivery:
- ----------------
(*)Include only for issuances of Preferred Stock.
(**)Include only for issuances of Depositary Shares representing interests in
Preferred Stock.
Number of Firm
Offered Securities
Underwriter To Be Purchased
- ----------- ------------------
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 ________ __,
199_, or at such other time, not later than 5:00 p.m. (New York time) on
________ __, 199_, 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 over-allotments made in connection with the
offering of the Firm Offered Securities.
- ---------------------
(*)Delete as appropriate.
(**)Include only for issuances of Depositary Shares representing interests in
Preferred Stock.
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](*) and other matters related
to the issuance of the Additional Offered Securities [and the Underlying
Preferred Shares]*.
The Offered Securities [and the Underlying Preferred Shares]*
shall have the terms set forth in the Prospectus dated __________ __, 1996 and
the Prospectus Supplement dated __________ __, 199_, including the following:
Terms of [Underlying]* Preferred Shares
Dividends:
Rate:
Dividend Payment Dates: _______ __, _______ __,
_______ __, and _______ __, commencing _______ __, 199_;
Dividends cumulate from _______ __, 199_
Liquidation Preference: $_____ per share
Redemption:
[Other Terms:]
[Terms of Depositary Shares
Dividends:
Rate:
Dividend Payment Dates: _______ __, _______ __,
_______ __, and _______ __, commencing _______ __, 199_;
Dividends cumulate from _______ __, 199_
- --------------
(*)Include only for issuances of Depositary Shares representing interests in
Preferred Stock.
Liquidation Preference: $_____ per share (equivalent to
$____ per Underlying Preferred
Share)
Redemption:
[Other Terms:]](*)
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 Group Inc. Underwriting Agreement
Standard Provisions (Preferred Stock and Depositary Shares) dated _______
__, 1996, (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].(**)
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 & 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:
MORGAN STANLEY GROUP INC.
By: _________________________
Name:
Title:
- -------------------
(*)Include only for issuances of Depositary Shares representing interests in
Preferred Stock.
(**)Include only for issuances of Preferred Stock.
MORGAN STANLEY GROUP INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(PREFERRED STOCK AND DEPOSITARY SHARES)
August 23, 1996
From time to time, Morgan Stanley Group Inc., 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 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 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 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.
(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 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 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
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 subsidiaries is a
party or to which any of the properties of the Company or any
of its 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) Each of the Company and its 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.
(p) 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.
(q)The Company has complied with all provisions of Section
517.075, Florida Statutes relating to doing business with the
Government of Cuba or with any person or affiliate located in
Cuba.
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.
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 which 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 underwriters shall request in writing not later
than two full business days 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 forms and registered in such names
and in such denominations as the underwriters shall request in writing not
later than two full business days 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 Closing. 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 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
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 knowledge as to proceedings threatened.
(c) The Manager shall have received on the Closing Date an
opinion of Jonathan M. Clark, General Counsel and Secretary of the Company, or
of other counsel satisfactory to the Manager and who is 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 & 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 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 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 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 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 Company's most
recent annual report on Form 10-K incorporated by reference in
the Prospectus and (5) in "Item 1 - Legal Proceedings," of Part
II of the Company's quarterly reports on Form 10-Q, if any,
filed since such annual report, 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; and
(xiii) such counsel (1) is of the opinion 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
included therein, as to which such counsel need not express
any opinion) 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)
believes that each part of the Registration Statement
(except as to financial statements and schedules included
therein, as to which such counsel need not express any
belief) on the date such part became effective did not, and
the Registration Statement (except as to financial
statements and schedules included therein, as to which such
counsel need not express any belief) as of the date such
opinion is delivered does 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, (3) is of the opinion that the
Registration Statement and Prospectus (except as to
financial statements and schedules included therein, as to
which such counsel need not express any opinion) comply as
to form in all material respects with the Securities Act and
the applicable rules and regulations of the Commission
thereunder and (4) believes that the Prospectus (except as
to financial statements and schedules included therein as to
which such counsel need not express any belief) as of the
date such opinion is delivered does not contain any untrue
statement of a material fact or omit 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.
With respect to paragraph (xiii) above, such counsel may state
that his opinion and belief are based upon his participation,
or the participation of someone under his 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.
(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 (xiii) of paragraph (c) above.
With respect to subparagraph (xiii) of paragraph (c) above,
Davis Polk & Wardwell 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.
(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.
5. Covenants of the Company. In further consideration of the
agreements of the Underwriters contained herein, the Company covenants as
follows:
(a) To furnish to 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 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 last 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 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 and 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 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, or any person controlling 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 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 or 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 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 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
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 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 and of the
Underwriters 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 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' obligations to
contribute pursuant to this Section 6 are several in proportion to their
respective underwriting percentages (as defined in the Agreement Among
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 (a) 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 National Association of Securities
Dealers, Inc., 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 general moratorium on commercial
banking activities in New York shall have been declared by either 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 that, in the judgment of the Manager, is material
and adverse and (b) in the case of any of the events specified in clauses
(a)(i) through (iv), such event, singly or together with any other such
event, 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.
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 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
of 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) reasonably incurred by such Underwriters in
connection with 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.
