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EXHIBIT 1-A
The Columbia Gas System, Inc.
$[ ]
UNDERWRITING AGREEMENT
New York, New York
[DATE]
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Dear Sirs:
The Columbia Gas System, Inc., a Delaware corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, (1) the principal amount, if any, of its debt securities (the
"Debentures") identified in Schedule I hereto, to be issued under an indenture
(the "Indenture") dated as of November 28, 1995, between the Company and Marine
Midland Bank, as Trustee (the "Trustee"); (2) the shares of common stock,
$10.00 par value, of the Company, if any, identified in Schedule I hereto (the
"Common Stock"); (3) the shares of preferred stock, $10.00 par value, of the
Company, if any, identified in Schedule I hereto (the "Preferred Stock"). The
Debentures, Common Stock and Preferred Stock may be sold either separately or
as units (the "units") together with any of the foregoing. The Debentures,
Common Stock and Preferred Stock shall collectively be referred to herein as
the "Securities". The Common Stock and Preferred Stock described in Schedule I
hereto shall collectively be referred to herein as the "Equity Securities". If
the firm or firms listed in Schedule II hereto include only the firm or firms
listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives", as used herein, shall each be deemed to refer to such firm
or firms.
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1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1, except that these representations and warranties do not apply to
that part of the Registration Statement which is the Statement of Eligibility
and Qualification under the Trust Indenture Act of 1939 (the "Trust Indenture
Act") (Form T-1) of the Trustee under the Indenture or to statements or
omissions in the Registration Statement, any preliminary prospectus or the
Prospectus based upon information furnished to the Company in writing by any
Underwriter or by the Representatives on behalf of any Underwriter for use
therein. Certain terms used in this Section 1 are defined in paragraph (d)
hereof.
(a) If the offering of the Securities is a Delayed Offering
(as specified in Schedule I hereto), paragraph (i) below is applicable
and, if the offering of the Securities is a Non-Delayed Offering (as
so specified), paragraph (ii) below is applicable.
(i) The Company meets the requirements for the
use of Form S-3 under the Securities Act of 1933 (the "Act")
and has filed with the U.S. Securities and Exchange Commission
(the "Commission") a registration statement (the file number
of which is set forth in Schedule I hereto) on such Form,
including a base prospectus, for registration under the Act of
the offering and sale of the Securities. The Company may have
filed one or more amendments thereto, and may have used a
preliminary final prospectus, each of which has previously
been furnished to you. Such registration statement, as so
amended, has become effective. The offering of the Securities
is a Delayed Offering and, although the Base Prospectus may
not include all the information with respect to the Securities
and the offering thereof required by the Act and the rules
thereunder to be included in the Final Prospectus, the Base
Prospectus includes all such information required by the Act
and the rules thereunder to be included therein as of the
Effective Date. The Company will next file with the
Commission pursuant to Rules 415 and 424(b)(2) or (5) a final
supplement to the form of prospectus included in such
registration statement relating to the Securities and the
offering thereof. As filed, such final prospectus supplement
shall include all required information with respect to the
Securities and the offering thereof and, except to the extent
the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that
contained in the Base Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein.
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(ii) The Company meets the requirements for
the use of Form S-3 under the Act and has filed with the
Commission a registration statement (the file number of which
is set forth in Schedule I hereto) on such Form, including a
Base Prospectus, for registration under the Act of the
offering and sale of the Securities. The Company may have
filed one or more amendments thereto, including a Preliminary
Final Prospectus, each of which has previously been furnished
to you. The Company will next file with the Commission either
(x) a final prospectus supplement relating to the Securities
in accordance with Rules 430A and 424(b)(1) or (4), or (y)
prior to the effectiveness of such registration statement, an
amendment to such registration statement, including the form
of final prospectus supplement. In the case of clause (x),
the Company has included in such registration statement, as
amended at the Effective Date, all information (other than
Rule 430A Information) required by the Act and the rules
thereunder to be included in the Final Prospectus with respect
to the Securities and the offering thereof. As filed, such
final prospectus supple ment or such amendment and form of
final prospectus supplement shall contain all Rule 430A
Information, together with all other such required
information, with respect to the Securities and the offering
thereof and, except to the extent the Representatives shall
agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the
Base Prospectus and any Preliminary Final Prospectus) as the
Company has advised you, prior to the Execution Time, will be
included or made therein.
(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Final
Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act, the Securities
Exchange Act of 1934 (the "Exchange Act") and the Trust Indenture Act
and the respective rules thereunder; on the Effective Date, the
Registration Statement did not or will not contain any 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 not misleading; on the Effective Date 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, on the Effective Date, the Final Prospectus,
if not filed pursuant to Rule 424(b), did not or will not, and on the
date of any filing pursuant to Rule 424(b) and on the Closing Date,
the Final Prospectus (together with any supplement thereto) will not,
include any untrue statement of a material fact or
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omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(c) A Declaration and amendments thereto, on Form U-1,
seeking appropriate orders permitting the issuance and sale of the
Securities and the transactions related thereto will be or has been
filed by the Company with the Commission under the Public Utility
Holding Company Act of 1935.
(d) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "the Effective Date"
shall mean each date that the Registration Statement and any
post-effective amendment or amendments thereto became or become
effective and each date after the date hereof on which a document
incorporated by reference in the Registration Statement is filed.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto. "Base Prospectus" shall
mean the prospectus referred to in paragraph (a) above contained in
the Registration Statement at the Effective Date including, in the
case of a Non-Delayed Offering, any Preliminary Final Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Base Prospectus which describes the Securities and
the offering thereof and is used prior to filing of the Final
Prospectus. "Final Prospectus" shall mean the prospectus supplement
relating to the Securities that is first filed pursuant to Rule 424(b)
after the Execution Time, together with the Base Prospectus or, if, in
the case of a Non-Delayed Offering, no filing pursuant to Rule 424(b)
is required, shall mean the form of final prospectus relating to the
Securities, including the Base Prospectus, included in the
Registration Statement at the Effective Date. "Registration
Statement" shall mean the registration statement referred to in
paragraph (a) above, including incorporated documents, exhibits and
financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto
becomes effective prior to the Closing Date (as hereinafter defined),
shall also mean such registration statement as so amended. Such term
shall include any Rule 430A Information deemed to be included therein
at the Effective Date as provided by Rule 430A. "Rule 415", "Rule
424", "Rule 430A" and "Regulation S-K" refer to such rules or
regulation under the Act. "Rule 430A Information" means information
with respect to the Securities and the offering thereof permitted to
be omitted from the Registration Statement when it becomes effective
pursuant to Rule 430A. Any reference herein to the Registration
Statement, the Base Prospectus, any Preliminary Final Prospectus or
the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of the
Base Prospectus, any
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Preliminary Final Prospectus or the Final Prospectus, as the case may
be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Base
Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Date of the Registration
Statement or the issue date of the Base Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may be, deemed
to be incorporated therein by reference. A "Non-Delayed Offering"
shall mean an offering of securities which is intended to commence
promptly after the effective date of a registration statement, with
the result that, pursuant to Rules 415 and 430A, all information
(other than Rule 430A Information) with respect to the securities so
offered must be included in such registration statement at the
effective date thereof. A "Delayed Offering" shall mean an offering
of securities pursuant to Rule 415 which does not commence promptly
after the effective date of a registration statement, with the result
that only information required pursuant to Rule 415 need be included
in such registration statement at the effective date thereof with
respect to the securities so offered. Whether the offering of the
Securities is a Non-Delayed Offering or a Delayed Offering shall be
set forth in Schedule I hereto.
2. Purchase and Sale. (a). Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
set forth in Schedule I hereto the principal amount or number of shares or
Units of Securities set forth opposite such Underwriter's name in Schedule II
hereto, except that, in the case of Debentures, if Schedule I hereto provides
for the sale of such Debentures pursuant to delayed delivery arrangements, the
respective principal amounts of Securities to be purchased by the Underwriters
shall be as set forth in Schedule II hereto less the respective amounts of
Contract Securities determined as provided below. Securities to be purchased
by the Underwriters are herein sometimes called the "Underwriters' Securities"
and Securities to be purchased pursuant to Delayed Delivery Contracts as
hereinafter provided are herein called "Contract Securities".
(b). If so provided in Schedule 1 hereto, the Company shall hereby
grant an option to the several Underwriters to purchase, severally and not
jointly, shares of Common Stock (the "Option Securities") at the purchase price
set forth in Schedule 1. Said option may be exercised only to cover
over-allotments in the sale of shares of Common Stock by the Underwriters.
Said option may be exercised in whole or in part at any time (but not more than
once) on or before the 30th day after the date of the Final Prospectus upon
written or telegraphic notice by the Representatives to the Company setting
forth the number of shares of the Option Securities as to which the several
Underwriters are exercising the option and the settlement date. Delivery of
certificates, if
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any, for the shares of Option Securities by the Company, and payment therefor
to the Company, shall be made as provided in Section 3 hereof. The number of
shares of the Option Securities to be purchased by each Underwriter shall be
the same percentage of the total number of shares of the Option Securities to
be purchased by the several Underwriters as such Underwriter is purchasing of
the aggregate number of shares of Securities to be purchased by the
Underwriters (excluding the Option Securities) as set forth in Schedule II
hereto, subject to such adjustments as you in your absolute discretion shall
make to eliminate any fractional shares. If Schedule 1 hereto does provide for
an over-allotment option as described above, the term "Securities" as used
herein shall be deemed to include the Option Securities.
(c). If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Securities from the Company pursuant
to delayed delivery contracts ("Delayed Delivery Contracts"), substantially in
the form of Schedule III hereto but with such changes therein as the Company
may authorize or approve. The Underwriters will endeavor to make such
arrangements and, as compensation therefor, the Company will pay to the
Representatives, for the account of the Underwriters, on the Closing Date, the
percentage set forth in Schedule I hereto of the principal amount of the
Securities for which Delayed Delivery Contracts are made. Delayed Delivery
Contracts are to be with institutional investors, including commercial and
savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions. The Company will enter into Delayed
Delivery Contracts in all cases where sales of Contract Securities arranged by
the Underwriters have been approved by the Company (it being understood that
the Company may withhold such approval) but, except as the Company may
otherwise agree, each such Delayed Delivery Contract must be for not less than
the minimum principal amount set forth in Schedule I hereto and the aggregate
principal amount of Contract Securities may not exceed the maximum aggregate
principal amount set forth in Schedule I hereto. The Underwriters will not
have any responsibility in respect of the validity or performance of Delayed
Delivery Contracts. The principal amount of Securities to be purchased by each
Underwriter as set forth in Schedule II hereto shall be reduced by an amount
which shall bear the same proportion to the total principal amount of Contract
Securities as the principal amount of Securities set forth opposite the name of
such Underwriter bears to the aggregate principal amount set forth in Schedule
II hereto, except to the extent that you determine that such reduction shall be
otherwise than in such proportion and so advise the Company in writing;
provided, however, that the total prin cipal amount of Securities to be
purchased by all Underwriters shall be the aggregate principal amount set forth
in Schedule II hereto less the aggregate principal amount of Contract
Securities.
3. Delivery and Payment. Delivery of and payment for the
Underwriters' Securities (including the Option Securities if the option
described in Section 2(b) hereof shall have been exercised on or before the
third business day prior to the Closing Date)
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shall be made on the date and at the time specified in Schedule I hereto, which
date and time may be postponed by agreement between the Representatives and the
Company or as provided in Section 8 hereof (such date and time of delivery and
payment for the Underwriters' Securities being herein called the "Closing
Date"). Delivery of such Securities shall be made to the Representatives for
the respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the purchase price thereof
to or upon the order of the Company to the account specified in Schedule I of
the Underwriting Agreement at [ ] bank by wire transfer of Federal
Same Day Funds. Delivery of such Securities shall be made at such location as
the Representatives shall reasonably designate at least one business day in
advance of the Closing Date, provided that all Debentures shall be delivered
through the DTC book entry system only, unless otherwise specified in Schedule
I, and payment for the Securities shall be made at the office specified in
Schedule I hereto. Certificates, if any, for such Securities shall be
registered in such names and in such denominations as the Representatives may
request in writing not less than two full business days in advance of the
Closing Date.
The Company agrees to have the Underwriters' Securities (including the
Option Securities if the option described in Section 2(b) hereof shall have
been exercised on or before the third business day prior to the Closing Date),
if applicable, available for inspection, checking and packaging by the
Representatives in New York, New York, not later than 1:00 PM on the business
day prior to the Closing Date.
If the option described in Section 2(b) hereof is exercised after the
third business day prior to the Closing Date, the Company will deliver (at the
expense of the Company) to the Representatives, at _____________________, New
York, New York, on the date specified by the Representatives (which shall be
within three business days after exerciseof said option), the Option
Securities against payment of the purchase price thereof to or upon the order
of the Company to the account specified in Schedule I of the Underwriting
Agreement at _____________________ bank by wire transfer of Federal Same Day
Funds. Certificates, if any, for the Option Securities shall be registered in
such names and in such denominations as the Representatives shall have
requested. If settlement for the Option Securities, if any, occurs after the
Closing Date, the Company will deliver to the Representatives on the
settlement date for the Option Securities, and the obligation of the
Underwriters to purchase the Option Securities shall be conditioned upon
receipt of, supplemental opinions as to matters set forth in [paragraphs (i)
and (ii) of Exhibit C] and the Officer's Certificates confirming as of since
the date of the opinions and Officer's Certificates delivered on the Closing
Date pursuant to Section 5(d) hereof.
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4. Agreements. The Company agrees with the several Underwriters
that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and
any amendment thereto, to become effective. Prior to the termination
of the offering of the Securities, the Company will not file any
amendment of the Registration Statement or supplement (including the
Final Prospectus or any Preliminary Final Prospectus) to the Base
Prospectus unless the Company has furnished you a copy for your review
prior to filing. Subject to the foregoing sentence, the Company will
cause the Final Prospectus, properly completed, and any supplement
thereto to be filed with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and will
provide evidence satisfactory to the Representatives of such timely
filing. The Company will promptly advise the Representatives (i) when
the Registration Statement, if not effective at the Execution Time,
and any amendment thereto, shall have become effective, (ii) when the
Final Prospectus, and any supplement thereto, shall have been filed
with the Commission pursuant to Rule 424(b), (iii) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (iv)
of any request by the Commission for any amendment of the Registration
Statement or supplement to the Final Prospectus or for any additional
information, (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (vi)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time after the first date of the public
offering of the Securities when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be neces sary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (i) prepare and
file with the Commission an amendment or supplement which will correct
such statement or omission or effect such compli ance and (ii) supply
any supplemented Prospectus to you in such quantities as you may
reasonably request.
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(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and
Rule 158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required
by the Act, as many copies of any Preliminary Final Prospectus and the
Final Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(e) The Company will arrange for the qualification of
the Securities under the securities or "blue sky" laws of such states
as the Representatives may reasonably request, and use its best
efforts to assist the Representatives in securing such qualification
and to pay all expenses (including fees and disbursements of counsel)
up to $5,000 in connection with such qualifications and in connection
with the determination of the eligibility of the Securities for
investment under the laws of such jurisdictions as the Representatives
may designate, as well as all filing fees payable in connection with
the review of the Securities by the National Association of Securities
Dealers, Inc.; provided, however, that the Company shall not be
obligated to qualify as a foreign corporation or as a dealer in
securities or to execute or file any consent to service of process
(other than consent with respect to service of process arising in
connection with the Securities) under the laws of any such state.
(f) The Company confirms as of the date hereof that it is
in compliance with all provisions of Section 1 of Laws of Florida,
Chapter 92-198, An Act Relating to Disclosure of Doing Business with
Cuba, and the Company further agrees that if it commences engaging in
business with the government of Cuba or with any person or affiliate
located in Cuba after the date the Registration Statement becomes or
has become effective with the Commission or with the Florida
Department of Banking and Finance (the "Department"), whichever date
is later, or if the information reported in the Prospectus, if any,
concerning the Company's business with Cuba or with any person or
affiliate located in Cuba changes in any material way, the Company
will provide the Department notice of such business or change, as
appropriate, in a form acceptable to the Department.
(g) Until the date set forth on Schedule I hereto, the
Company will not, without the prior written consent of the
Representatives, offer, sell or contract to sell, or otherwise dispose
of, directly or indirectly, or announce the offering of,
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any shares of Common Stock other than the shares offered pursuant
hereto, or any securities convertible into, or exchangeable for,
shares of Common Stock; provided, however, that the Company may issue
and sell Common Stock pursuant to any employee thrift plan, employee
stock option plan, stock ownership plan, dividend reinvestment plan or
similar plan of the Company in effect at the Execution Time and the
Company may issue Common Stock issuable upon the conversion of the
securities or the exercise of warrants outstanding at the Execution
Time.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters' Securities shall
be subject to the accuracy of the representations and warranties on the part of
the Company contained herein as of the Execution Time and the Closing Date, to
the accuracy of the statements of the Company made in any certificates pursuant
to the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 PM New York City time, on the
date of determination of the public offering price, if such
determination occurred at or prior to 3:00 PM New York City time on
such date or (ii) 12:00 Noon on the business day following the day on
which the public offering price was determined, if such determination
occurred after 3:00 PM New York City time on such date; if filing of
the Final Prospectus, or any supplement thereto, is required pursuant
to Rule 424(b), the Final Prospectus, and any such supplement, shall
have been filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives
the opinion of Cravath, Swaine & Xxxxx, counsel for the Company,
dated the Closing Date, in substantially the form of Exhibit A, if
Debentures are issued, of Exhibit B, if Common Stock is issued, or of
Exhibit C, if Preferred Stock is issued. In rendering such opinion,
such counsel may rely (A) as to matters involving the application of
laws of any jurisdiction other than the State of New York or the
United States, to the extent deemed proper and specified in such
opinion, upon the opinion of other counsel of good standing believed
to be reliable and who are satisfactory to counsel for the
Underwriters and (B) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the Company and
public officials. References to the Final Prospectus in this
paragraph (b) include any supplements thereto at the Closing Date.
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(c) The Representatives shall have received from Xxxxx,
Polk & Xxxxxxxx, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the issuance and
sale of the Securities, the Indenture, any Delayed Delivery Contracts,
the Registration Statement, the Final Prospectus (together with any
supplement thereto) and other related matters as the Representatives
may reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(d) The Company shall have furnished to the Representatives
a certificate of the Company, signed by the Chairman of the Board or
the President and the principal financial or accounting officer of
the Company, dated the Closing Date, to the effect that the signers
of such certificate have carefully examined the Registration
Statement, the Final Prospectus, any supplement to the Final
Prospectus and this Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all
material respects on and as of the Closing Date with the
same effect as if made on the Closing Date and the
Company has complied with all the agreements and
satisfied all the conditions on its part to be performed
or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the
effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge, threatened;
and
(iii) since the date of the most recent
financial statements included in the Final Prospectus
(exclusive of any supplement thereto), there has been no
material adverse change in the condition (financial or
other), earnings, business or properties of the Company
and its subsidiaries, whether or not arising from
transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(e) At the Closing Date, Xxxxxx Xxxxxxxx LLP shall have
furnished to the Representatives a letter or letters (which may refer
to letters previously delivered to one or more of the
Representatives), dated as of the Closing Date, in form and substance
satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Act and the Exchange
Act and the
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respective applicable published rules and regulations thereunder and
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 Registration Statement and the
Prospectus.
References to the Prospectus in this paragraph (e)
include any supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at
the Execution Time, Xxxxxx Xxxxxxxx LLP shall have furnished to the
Representatives a letter or letters, dated as of the Execution Time,
in form and substance satisfactory to the Representatives, to the
effect set forth above.
(f) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been any
change in the results of operations, the financial condition or
affecting the business or properties of the Company and its
subsidiaries the effect of which is, in the reasonable judgment of
the Representatives, so material and adverse to the Company and its
subsidiaries taken as a whole, as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities
as contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any
supplement thereto).
(g) The Company shall have accepted Delayed Delivery
Contracts in any case where sales of Contract Securities arranged by
the Underwriters have been approved by the Company.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall be
delivered at the office of Cravath, Swaine & Xxxxx, counsel for the Columbia
Gas System, Inc., at Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx
the Closing Date.
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6. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied,
or because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person, if any, who controls
any Underwriter within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several,
to which they or any of them may become subject under the Act, the Exchange Act
or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement for the registration of the Securities as originally filed or in any
amendment thereof, or in the Base Prospectus, any Preliminary Final Prospectus
or the Final Prospectus (if used within the period set forth in paragraph (b)
of Section 4 hereof and as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or arising out of or based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representatives specifically for inclusion therein, or arises out of, or is
based upon, statements in or omissions from the part of the Registration
Statement which shall constitute the Statement of Eligibility and Qualification
under the Trust Indenture Act (Form T-1) of the Trustee under the Indenture;
and provided further, however, that indemnification 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 the Securities which are the subject thereof (or to the benefit of
any person controlling such Underwriter), if such Underwriter (or the
Representatives on behalf of such Underwriter) failed to send or give a copy of
the Final Prospectus (as amended or supplemented if the Company shall have made
any amendments or
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supplements thereto which have theretofore been furnished to the
Representatives or such Underwriter), excluding any documents incorporated by
reference therein, to such person at or prior to the written confirmation of
the sale of such Securities to such person. This indemnity agreement will be
in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, to
the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to written information relating
to such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for inclusion in
the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any Underwriter
may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 7, notify the
indemnifying party in writing of the commencement thereof. The
indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which
indemnification is sought (in which case the indemni fying party shall
not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except
as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local 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 include both
the indemnified party and the indemnifying party and representation of
both parties by the same counsel would be in appropriate due to actual
or potential differing interests between them, or (iii) the
indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. It is
understood that the indemnifying party shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be
liable for the reasonable fees and expenses of more than one separate
firm (in addition to one local counsel in each such jurisdiction) for
all such indemnified parties, and that all such fees and
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15
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Representatives in the case of parties
indemnified pursuant to the second preceding paragraph and by the
Company in the case of parities 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.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 7 is unavailable or insufficient to hold
harmless to the extent provided for in paragraphs (a) and (b) hereof
to an indemnified party for any reason, the Company and the
Underwriters agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company and by the
Underwriters from the offering of the Securities; provided, however,
that in no case shall any Underwriter (except as may be provided in
any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the
underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided
by the immediately preceding sentence is unavailable for any reason,
the Company and the Underwriters shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company and of the Underwriters in
connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal to the
total net proceeds from the offering (before deducting expenses), and
benefits received by the Underwriters shall be deemed to be equal to
the total underwriting discounts and commissions, in each case as set
forth on the cover page of the Final Prospectus. Relative fault shall
be determined by reference to whether any alleged untrue statement or
omission relates to information provided by the Company or the
Underwriters. The Company and the Underwriters agree that it would
not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take
account of the equitable considerations referred to above.
Notwithstanding the provisions of this para graph (d), no person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 7, each person who controls an Underwriter within the
meaning of either the Act or the Exchange Act and each director,
officer, employee and agent
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of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as
the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters agreed
but failed to purchase shall exceed 10% of the aggregate amount of Securities
set forth in Schedule II hereto, the remaining Underwriters shall have the
right to purchase all, but shall not be under any obligation to purchase any,
of the Securities, and if such nondefaulting Underwriters do not purchase all
the Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 8, the Closing Date shall be postponed
for such period, not exceeding seven days, as either the Representatives or the
Company shall determine in order that the required changes in the Registration
Statement and the Final Prospectus or in any other documents or arrangements
may be effected. Nothing contained in this Agreement shall relieve any
defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to termination, in
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if prior to such time (i)
trading in the Company's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or materially limited,
(ii) a banking moratorium shall have been declared either by Federal or New
York State authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war or other calamity or crisis the effect of which on financial
markets is such as to make it, impracticable, in the reasonable judgement of
the Representatives, or inadvisable to proceed with the offering or delivery of
the Securities as contemplated by the Final Prospectus (exclusive of any
supplement thereto).
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10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
the Company or its officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter or the Company or any
of the officers, directors or controlling persons referred to in Section 7
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 6 and 7 hereof shall survive the termination or
cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telegraphed and confirmed to them, at the address specified in
Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at Xxxxxxx X. Xxxxxx, Secretary, attention of
the legal department.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7 hereof,
and no other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York without reference to
principles of conflicts of laws.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
Corporation
By:
------------------------------
[Title]
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
By:
--------------------------------
[Title]
By:
-------------------------------
[Title]
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
or
By:
-------------------------------
[Title]
For itself and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
19
EXHIBIT A
Form of Opinion of Special Counsel to the Company
The opinion of ____________________, counsel to the Company, to be
delivered pursuant to Section 5(b) of the document entitled The Columbia Gas
System, Inc., Underwriting Agreement Standard Provisions (Debentures) shall be
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 and has due corporate authority to carry on the business in
which it is engaged;
(ii) the Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company;
(iii) the Indenture has been duly qualified under the Trust
Indenture Act;
(iv) the Debentures have been duly authorized, and when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to the Underwriters against payment of the
agreed consideration therefor, will be valid and binding obligations
of the Corporation;
(v) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company, except as rights to indemnity thereunder may
be limited by applicable law;
(vi) the execution, delivery and performance of the
Underwriting Agreement will not contravene any provision of applicable
law or regulation or the Restated Certificate of Incorporation or
By-Laws, as amended, of the Company;
(vii) the statements in the Prospectus under "Description of
Debentures" and "Certain Terms and Description of Debentures and
Indenture", insofar as such statements constitute a summary of the
documents referred to therein, fairly present the information called
for with respect to such documents;
(viii) the Registration Statement and the prospectus (except for
the financial statements and other financial and statistical
information included therein, as to which we do not express any
opinion) comply as to form in all material respects with the
requirements of the Securities Act and the rules and regulations of
the Commission thereunder; and
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(ix) the Registration Statement is effective under the
Securities Act of 1933 and to the best of such counsel's knowledge, no
proceeding for a stop order with respect thereto is pending or
threatened under Section 8(d) of the Securities Act of 1933.
(x) In passing upon the form of the Registration Statement and
Prospectus, such counsel has necessarily assumed the correctness and
completeness of the statements made therein and take no responsibility
therefor, except so far as the statements relate to such counsel,
except as set forth in the preceding subparagraph (vii) and except
that such counsel is of the opinion that the statements contained in
the Corporation's Annual Report on Form 10-K for the year ended 1994
under the caption "Business--Public Utility Holding Company Act",
insofar as they relate to the regulation and status of the Company and
its subsidiary companies under the Public Utility Holding Company Act
of 1935, are correct as to matters of law and legal conclusions.
However, in the course of the preparation by the Company of the
Registration Statement and the Prospectus (the documents incorporated
therein by reference having previously been filed by the Company),
such counsel participated in conferences with officers of the Company
with respect thereto, and such counsel's examination of the
Registration Statement and the Prospectus and such counsel's
discussions in the above-mentioned conferences did not disclose any
information which gave such counsel reason to believe that the
Registration Statement (except for the financial statements and other
financial data contained therein, as to which such counsel does not
express any opinion), as of its effective date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus (except for the
financial statements and other financial data contained therein, as to
which such counsel does not express any opinion), at the date of the
Prospectus Supplement and at the date hereof, included any untrue
statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Counsel
neither represents nor is consulted by the Company with respect to the
Federal Energy Regulatory Commission and other regulatory matters,
and, due to the complexity of such matters and the comprehensive
knowledge thereof required in order to evaluate their significance to
the Company, in making the statement set forth in the previous
sentence counsel has, to the extent such statement relates to such
matters, relied solely upon the opinion of the General Counsel of
Columbia Gas Transmission Corporation, delivered contemporaneously
herewith.
21
EXHIBIT B
Form of Opinion of Special Counsel to the Company
The opinion of ____________________, counsel to the Company, to be
delivered pursuant to Section 5(b) of the document entitled The Columbia Gas
System, Inc., Underwriting Agreement Standard Provisions (Common Stock) shall
be 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 and has due corporate authority to carry on the business in
which it is engaged;
(ii) the Securities have been duly authorized, and when issued
and delivered to and paid for by the Underwriters in accordance with
the terms of the Underwriting Agreement, will have been validly
issued;
(iii) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company, except as rights to indemnity thereunder may
be limited by applicable law;
(iv) the performance of the Underwriting Agreement will not
contravene any provision of applicable law or regulation or the
certificate of incorporation or by-laws of the Company and no consent,
approval or authorization of any governmental body or agency is
required for the performance by the Corporation of its obligations
under the Underwriting Agreement, except that Counsel does not express
any opinion with respect to such consent, approval or authorization as
may be required under (a) the Natural Gas Act, as amended, or the
Natural Gas Policy Act or the rules, regulations, orders or official
pronouncements of the Federal Energy Regulatory Commission (the
"FERC") thereunder or (b) the securities or blue sky laws of the
various states in connection with the offer and sale of the Shares;
(v) such counsel is of the opinion that the Registration
Statement and the Prospectus (except for the financial statements and
other financial and statistical information included therein, as to
which such counsel does not express any opinion) comply as to form in
all material respects with the requirements of the Securities Act of
1933 and the rules and regulations of the Commission thereunder. In
passing upon the form of the Registration Statement and Prospectus,
such counsel has necessarily assumed the correctness and completeness
of the statements made therein and take no responsibility therefor,
except so far as the statements relate to such counsel and except that
such counsel is of the opinion that (i) the statements in the
Prospectus under the caption
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"Description of Common Stock", insofar as such statements constitute a
summary of the documents referred to therein, fairly present the
information called for with respect to such documents and (ii) the
statements contained in the Corporation's Annual Report on Form 10-K
for the year ended 1994 under the caption "Business--Public Utility
Holding company Act", insofar as they relate to the regulation and
status of the Company and its subsidiary companies under the Public
Utility Holding Company Act of 1935, are correct as to matters of law
and legal conclusions. In addition, we neither represent nor are
consulted by the Corporation with respect to the FERC and, in making
the statement set forth below in this paragraph, to the extent such
statement refers to such matters, rely solely on the opinion of an
officer of the Company delivered contemporaneously herewith. However,
in the course of the preparation by the Company of the Registration
Statement and the Prospectus (the documents incorporated therein by
reference having previously been filed by the Company), such counsel
participated in conferences with officers of the Company with respect
thereto, and such counsel's examination of the Registration Statement
and the Prospectus and such counsel's discussions in the
above-mentioned conferences did not disclose any information which
gave such counsel reason to believe that the Registration Statement
(except for the financial statements and other financial data
contained therein, as to which such counsel does not express any
opinion), as of its effective date, contained any untrue statement of
a material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectus (except for the financial
statements and other financial data contained therein, as to which
such counsel does not express any opinion), at the date of the
Prospectus Supplement, included any untrue statement of a material
fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading; and
(vi) the Registration Statement is effective under the
Securities Act of 1933 and to the best of such counsel's knowledge, no
proceeding for a stop order with respect thereto is pending or
threatened under Section 8(d) of the Securities Act of 1933.
23
EXHIBIT C
Form of Opinion of Special Counsel to the Company
The opinion of ___________________, counsel to the Company, to be
delivered pursuant to Section 5(b) of the document entitled The Columbia Gas
System, Inc., Underwriting Agreement Standard Provisions (Preferred Stock)
shall be 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 and has due corporate authority to carry on the business in
which it is engaged;
(ii) the Securities have been duly authorized, and when issued
and delivered to and paid for by the Underwriters in accordance with
the terms of the Underwriting Agreement, will have been validly issued
and will be fully paid and nonassessable, and the issuance of the
Securities is not subject to any preemptive or similar rights;
(iii) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company, except as rights to indemnity thereunder may
be limited by applicable law;
(iv) the performance of the Underwriting Agreement will not
contravene any provision of applicable law or regulation or the
certificate of incorporation or by-laws of the Company and no consent,
approval or authorization of any governmental body or agency is
required for the performance by the Company of its obligations under
the Underwriting Agreement, except that Counsel does not express any
opinion with respect to such consent, approval or authorization as may
be required under (a) the Natural Gas Act, as amended, or the Natural
Gas Policy Act or the rules, regulations, orders or official
pronouncements of the Federal Energy Regulatory Commission (the
"FERC") thereunder or (b) the securities or blue sky laws of the
various states in connection with the offer and sale of the Shares;
(v) such counsel is of the opinion that the Registration
Statement and the Prospectus (except the financial statements and
other financial and statistical information included therein, as to
which such counsel does not express any opinion) comply as to form in
all material respects with the requirements of the Securities Act of
1933 and the rules and regulations of the Commission thereunder. In
passing upon the form of the Registration Statement and Prospectus,
such counsel has necessarily assumed the correctness and completeness
of the statements made therein and take no responsibility therefor,
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except so far as the statements relate to such counsel and except that
such counsel is of the opinion that (i) the statements in the
Prospectus under the caption "Description of Preferred Stock", insofar
as such statements constitute a summary of the documents referred to
therein, fairly present the information called for with respect to
such documents and (ii) the statements contained in the Corporation's
Annual Report on Form 10-K for the year ended 1994 under the caption
"Business--Public Utility Holding Company Act", insofar as they relate
to the regulation and status of the Company and its subsidiary
companies under the Public Utility Holding Company Act of 1935, are
correct as to matters of law and legal conclusions. In addition, we
neither represent nor are consulted by the Corporation with respect to
the FERC and, in making the statement set forth below in this
paragraph, to the extent such statement refers to such matters, rely
solely on the opinion of [an officer] of the Company delivered
contemporaneously herewith. However, in the course of the preparation
by the Company of the Registration Statement and the Prospectus (the
documents incorporated therein by reference having previously been
filed by the Company), such counsel participated in conferences with
officers of the Company with respect thereto, and such counsel's
examination of the Registration Statement and the Prospectus and such
counsel's discussions in the above-mentioned conferences did not
disclose any information which gave such counsel reason to believe
that the Registration Statement (except for the financial statements
and other financial data contained therein, as to which such counsel
does not express any opinion), as of its effective date, contained any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus (except for the
financial statements and other financial data contained therein, as to
which such counsel does not express any opinion), at the date of the
Prospectus Supplement, included any untrue statement of a material
fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading; and
(vi) the Registration Statement is effective under the
Securities Act of 1933 and to the best of such counsel's knowledge,
no proceeding for a stop order with respect thereto is pending or
threatened under Section 8(d) of the Securities Act of 1933.
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SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representative(s):
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include accrued
interest or amortization, if
any):
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location:
Type of Offering: [Delayed Offering or Non-Delayed Offering]
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each contract: $
Maximum aggregate principal amount of all contracts: $
Account referred to in Section 3:
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SCHEDULE II
Underwriters Principal Amount
------------ of Securities to
be Purchased
----------------
$
--------------------
Total................................. $
====================
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SCHEDULE III
Delayed Delivery Contract
, 19
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from
Corporation (the "Company"), and the Company agrees to sell
to the undersigned, on , 19 , (the "Delivery Date"), $ principal
amount of the Company's (the "Securities") offered by the
Company's Prospectus dated , 19 , and related Prospectus Supplement
dated , 19 , receipt of a copy of which is hereby acknowledged, at
a purchase price of % of the principal amount thereof, plus [accrued
interest] [amortization of original issue discount], if any, thereon from
, 19 , to the date of payment and delivery, and on the further
terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be
made on or before 11:00 AM, New York City time, on the Delivery Date to or upon
the order of the Company in Federal Same Day Funds, by wire transfer to the
Account specified in Schedule I of the Underwriting Agreement at [ ]
bank and the undersigned, upon delivery to the undersigned of the Securities in
definitive fully registered form and in such authorized denominations and
registered in such names as the undersigned may request by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date, unless delivered through the DTC book
entry system. If no request is received, the Securities will be registered in
the name of the undersigned or Cede & Co., as applicable, and issued in a
denomination equal to the aggregate principal amount of Securities to be
purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of, if any, and
make payment for Securities on the Delivery Date, and the obligation of the
Company to sell and deliver
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Securities on the Delivery Date, shall be subject to the conditions (and
neither party shall incur any liability by reason of the failure thereof) that
(1) the purchase of Securities to be made by the undersigned, which purchase
the undersigned represents is not prohibited on the date hereof, shall not on
the Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject, and (2) the Company, on or before the Delivery Date,
shall have sold to certain underwriters (the "Underwriters") such principal
amount of the Securities as is to be sold to them pursuant to the Underwriting
Agreement referred to in the Prospectus and Prospectus Supplement mentioned
above. Promptly after completion of such sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice
to such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith. The obligation of the
undersigned to take delivery of and make payment for the Securities, and the
obligation of the Company to cause the Securities to be sold and delivered,
shall not be affected by the failure of any purchaser to take delivery of and
make payment for the Securities pursuant to other contracts similar to this
contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract
is acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding
contract between the Company and the undersigned, as of the date first above
written, when such counterpart is so mailed or delivered.
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This agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Very truly yours,
By:
--------------------------------------
(Name of Purchaser)
By:
-------------------------------------
(Signature and Title of Officer)
By:
-------------------------------------
(Address)
Accepted:
Corporation,
By:
---------------------------
(Authorized Signature)
