i. underwriting agreements

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I. UNDERWRITING AGREEMENTS Contribution • Provides remedy in “equity” rather than “at law” if indemnification insufficient or not available for any reason • Amount to be contributed by indemnifying party based on relative benefits of the offering to the parties • Look also to relative fault only if relative benefit not enforceable • Limits on contribution amounts • Underwriter – the gross proceeds of securities underwritten by it or, alternatively, the offering fees received by it (consistent with several vs. joint approach) 12
I. UNDERWRITING AGREEMENTS Expenses and Termination • Expenses section – the issuer, and sometimes the selling shareholders, covers all expenses of the offering, other than underwriters’ expenses • Roadshow expenses are often subject to negotiation • Caps on certain expenses may be negotiated • Termination section – underwriters may terminate the <strong>underwriting</strong> agreement before closing upon certain “market outs” or force majeure events • Underwriters can also terminate if there has been a material adverse change at the issuer (the “company MAC out”) or a ratings downgrade of the issuer’s debt securities • Issuer and/or selling shareholders typically agree to reimburse the underwriters’ expenses, including external counsel fees and expenses, if the underwriters terminate for reasons allowed under the agreement 13
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