CONNECTICUT ENERGY CORPORATION
(a Connecticut corporation)
Common Stock
UNDERWRITING AGREEMENT
----------------------
September [__], 1997
[_______________________]
Ladies and Gentlemen:
Connecticut Energy Corporation (the "Company"), proposes to issue and
sell up to $[_______] aggregate initial public offering price of its shares of
common stock, par value $1 per share (the "Common Stock"), from time to time, in
or pursuant to one or more offerings on terms to be determined at the time of
sale. As used herein, "Securities" shall mean the Common Stock.
Whenever the Company determines to make an offering of Securities
through [______________], or through an underwriting syndicate managed by
[_____________], the Company will enter into an agreement (each, a "Terms
Agreement") providing for the sale of such Securities to, and the purchase and
offering thereof by, [_________________] and such other underwriters, if any,
selected by [______________] (the "Underwriters," which term shall include
[_____________], whether acting as sole Underwriter or as a member of an
underwriting syndicate, as well as any Underwriter substituted pursuant to
Section 10 hereof). The Terms Agreement relating to the offering of Securities
shall specify the number of Securities to be issued initially (the "Initial
Underwritten Securities"), the name of each Underwriter participating in such
offering (subject to substitution as provided in Section 10 hereof) and the name
of any Underwriter other than [_______________] acting as co-manager in
connection with such offering, the number of Initial Underwritten Securities
which each such Underwriter severally agrees to purchase, whether such offering
is on a fixed or variable price basis and, if on a fixed price basis, the
initial offering price, the price at which the Initial Underwritten Securities
are to be purchased by the Underwriters, the form, time, date and place of
delivery and payment of the Initial Underwritten Securities. In addition, if
applicable, such Terms Agreement shall specify whether the Company has agreed to
grant to the Underwriters an option to purchase additional Securities to cover
over-allotments, if any, and the number of Securities subject to such option
(the "Option Underwritten Securities"). As used herein, the term "Underwritten
Securities" shall include the Initial Underwritten Securities and all or any
portion of any Option Underwritten
Securities. The Terms Agreement, which shall be substantially in the form of
Exhibit A hereto, may take the form of an exchange of any standard form of
written telecommunication between the Company and [_____________], acting for
itself and, if applicable, as representative of any other Underwriters. Each
offering of Underwritten Securities through [_____________] as sole Underwriter
or through an underwriting syndicate managed by [______________] will be
governed by this Underwriting Agreement, as supplemented by the applicable Terms
Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-[___]) for the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), and the offering thereof from time to time in accordance with Rule
415 of the rules and regulations of the Commission under the 1933 Act (the "1933
Act Regulations"), and the Company has filed such post-effective amendments
thereto as may be required prior to the execution of the applicable Terms
Agreement. Such registration statement (as so amended, if applicable) has been
declared effective by the Commission. Such registration statement (as so
amended, if applicable), including the information, if any, deemed to be a part
thereof pursuant to Rule 430A(b) of the 1933 Act Regulations (the "Rule 430A
Information") or Rule 434(d) of the 1933 Act Regulations (the "Rule 434
Information"), is referred to herein as the "Registration Statement"; and the
final prospectus and the final prospectus supplement relating to the offering of
the Underwritten Securities, in the form first furnished to the Underwriters by
the Company for use in connection with the offering of the Underwritten
Securities, are collectively referred to herein as the "Prospectus"; provided,
however, that all references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), prior to the execution of the applicable Terms Agreement; provided,
further, that if the Company files a registration statement with the Commission
pursuant to Rule 462(b) of the 1933 Act Regulations (the "Rule 462 Registration
Statement"), then, after such filing, all references to "Registration Statement"
shall also be deemed to include the Rule 462 Registration Statement; and
provided, further, that if the Company elects to rely upon Rule 434 of the 1933
Act Regulations, then all references to "Prospectus" shall also be deemed to
include the final or preliminary prospectus and the applicable term sheet or
abbreviated term sheet (the "Term Sheet"), as the case may be, in the form first
furnished to the Underwriters by the Company in reliance upon Rule 434 of the
1933 Act Regulations, and all references in this Underwriting Agreement to the
date of the Prospectus shall mean the date of the Term Sheet. A "preliminary
prospectus" shall be deemed to refer to any prospectus used before the
registration statement became effective and any prospectus that omitted, as
applicable, the Rule 430A Information, the Rule 434 Information or other
information to be included upon pricing in a form of prospectus filed with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations, that was used
after such effectiveness and prior to the execution and delivery of the
applicable Terms Agreement. For purposes of this Underwriting Agreement, all
references to the Registration Statement, Prospectus, Term Sheet or preliminary
prospectus or to any amendment or supplement to any of the foregoing shall be
deemed to include any copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("XXXXX").
-2-
All references in this Underwriting Agreement to financial statements
and schedules and other information which is "contained," "included" or "stated"
(or other references of like import) in the Registration Statement, Prospectus
or preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be; and all references in this Underwriting Agreement to
amendments or supplements to the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include the filing of any
document under the 1934 Act which is incorporated by reference in the
Registration Statement, Prospectus or preliminary prospectus, as the case may
be.
SECTION 1. Representations and Warranties.
------------------------------
(a) Representations and Warranties by the Company. The Company
represents and warrants to [____________], as of the date hereof, and to
each Underwriter named in the applicable Terms Agreement, as of the date
thereof, as of the Closing Time (as defined below) and, if applicable, as
of each Date of Delivery (as defined below) (in each case, a
"Representation Date"), as follows:
(1) Compliance with Registration Requirements. The Company meets
-----------------------------------------
the requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or,
to the knowledge of the Company, are contemplated by the Commission,
and any request on the part of the Commission for additional
information has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments
thereto (including the filing of the Company's most recent Annual
Report on Form 10-K with the Commission (the "Annual Report on Form
10-K")) became effective and at each Representation Date, the
Registration Statement, any Rule 462(b) Registration Statement and any
amendments and supplements thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading. At the date of the Prospectus, at the Closing Time and at
each Date of Delivery, if any, the Prospectus and any amendments and
supplements thereto did not and will not include an untrue statement
of a material fact or 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. If the Company elects to
rely upon Rule 434 of the 1933 Act Regulations, the Company will
comply with the requirements of Rule 434. Notwithstanding the
foregoing, the representations and warranties in this subsection shall
not apply
-3-
to statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through
[_____________] expressly for use in the Registration Statement or the
Prospectus.
Each preliminary prospectus and 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 1933 Act, complied
when so filed in all material respects with the 1933 Act Regulations
and each preliminary prospectus and the Prospectus delivered to the
Underwriters for use in connection with the offering of Underwritten
Securities will, at the time of such delivery, be identical to any
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(2) Incorporated Documents. The documents incorporated or deemed
----------------------
to be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read
together with the other information in the Prospectus, at the date of
the Prospectus, at the Closing Time and at each Date of Delivery, if
any, did not and will not include an 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.
(3) Independent Accountants. The accountants, Coopers & Xxxxxxx
-----------------------
L.L.P., who certified the financial statements and any supporting
schedules thereto included in the Registration Statement and the
Prospectus are independent public accountants as required by the 1933
Act and the 1933 Act Regulations.
(4) Financial Statements. The financial statements of the
--------------------
Company included in the Registration Statement and the Prospectus,
together with the related schedules and notes, present fairly the
financial position of the Company and its consolidated subsidiaries,
at the dates indicated, and present fairly the results of operations,
shareholders' equity and cash flows of the Company and its
consolidated subsidiaries, for the periods specified. Such financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules, if any,
included in the Registration Statement and the Prospectus present
fairly in accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial
information included in the Prospectus present fairly the information
shown therein and have been compiled on a basis
-4-
consistent with that of the audited financial statements included in
the Registration Statement and the Prospectus.
(5) No Material Adverse Change in Business. Since the respective
--------------------------------------
dates as of which information is given in the Registration Statement
and the Prospectus, except as otherwise stated therein, (A) there has
been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business (a "Material
Adverse Effect"), (B) there have been no transactions entered into by
the Company or any of its subsidiaries, other than those arising in
the ordinary course of business, which are material with respect to
the Company and its subsidiaries considered as one enterprise and (C)
except for regular dividends on the Company's common stock or
preferred stock, in amounts per share that are consistent with past
practice or the applicable charter document or supplement thereto,
respectively, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(6) Good Standing of the Company. The Company has been duly
----------------------------
organized and is validly existing as a corporation in good standing
under the laws of the State of Connecticut and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under, or as contemplated under, this Underwriting
Agreement and the applicable Terms Agreement. The Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify or be
in good standing would not result in a Material Adverse Effect.
(7) Good Standing of Subsidiary. The Southern Connecticut Gas
---------------------------
Company ("Southern") has been duly organized and is validly existing
as a corporation in good standing under the laws of the jurisdiction
of its incorporation, has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in
the Prospectus and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify or be in good standing would not
result in a Material Adverse Effect. Except as otherwise stated in
the Registration Statement and the Prospectus, all of the issued and
outstanding capital stock of Southern has been duly authorized and is
validly issued, fully paid and non-assessable and is owned by the
Company free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity. None of the outstanding shares of
capital stock of Southern was issued in violation of preemptive or
other similar rights of any security holder of Southern.
-5-
(8) Capitalization. All of the outstanding shares of common
--------------
stock of the Company have been duly authorized and validly issued by
the Company and are fully paid and non-assessable, and none of such
shares of capital stock was issued in violation of preemptive or other
similar rights of any securityholder of the Company.
(9) Authorization of this Underwriting Agreement and Terms
------------------------------------------------------
Agreement. This Underwriting Agreement has been, and the applicable
---------
Terms Agreement as of the date thereof will have been, duly
authorized, executed and delivered by the Company.
(10) Authorization of Common Stock. The Underwritten Securities
-----------------------------
have been, or as of the date of the applicable Terms Agreement will
have been, duly authorized by the Company for issuance and sale
pursuant to this Underwriting Agreement and such Terms Agreement.
Such Underwritten Securities, when issued and delivered by the Company
pursuant to this Underwriting Agreement and such Terms Agreement
against payment of the consideration therefor specified in such Terms
Agreement, will be validly issued, fully paid and non-assessable and
will not be subject to preemptive or other similar rights of any
securityholder of the Company. No holder of such Underwritten
Securities is or will be subject to personal liability by reason of
being such a holder.
(11) Descriptions of the Underwritten Securities. The
-------------------------------------------
Underwritten Securities being sold pursuant to the applicable Terms
Agreement, as of the date of the Prospectus, will conform in all
material respects to the statements relating thereto contained in the
Prospectus and will be in substantially the form filed or incorporated
by reference, as the case may be, as an exhibit to the Registration
Statement.
(12) Absence of Defaults and Conflicts. Neither the Company nor
---------------------------------
any of its subsidiaries is in violation of its charter or by-laws or
in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or
to which any of the property or assets of the Company or any of its
subsidiaries is subject (collectively, "Agreements and Instruments"),
except for such defaults that would not result in a Material Adverse
Effect. The execution, delivery and performance of this Underwriting
Agreement and the applicable Terms Agreement and any other agreement
or instrument entered into or issued or to be entered into or issued
by the Company in connection with the actions contemplated hereby or
thereby or in the Registration Statement and the Prospectus and the
consummation of the actions contemplated herein and in the
Registration Statement and the Prospectus (including the issuance and
sale of the Underwritten Securities and the use of the proceeds from
the sale of the Underwritten Securities as described under
-6-
the caption "Use of Proceeds") and compliance by the Company with its
obligations hereunder and thereunder have been duly authorized by all
necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any assets, properties or operations of the
Company or any of its subsidiaries pursuant to, any Agreements and
Instruments (except for such conflicts, breaches, defaults, events or
liens, charges or encumbrances that would not result in a Material
Adverse Effect) nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any of its
subsidiaries or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any if its subsidiaries or any of their assets,
properties or operations. As used herein, a "Repayment Event" means
any event or condition which gives the holder of any note, debenture
or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or
any of its subsidiaries.
(13) Absence of Labor Dispute. No labor dispute with the
------------------------
employees of the Company or any of its subsidiaries exists or, to the
knowledge of the Company, is imminent, and the Company is not aware of
any existing or imminent labor disturbance by the employees of any of
its or any subsidiary's principal suppliers, customers or contractors,
which, in either case, may reasonably be expected to result in a
Material Adverse Effect.
(14) Absence of Proceedings. There is not pending or, to the
----------------------
knowledge of the Company, threatened any action, suit, proceeding,
inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or to
the knowledge of the Company threatened, against or affecting the
Company or any of its subsidiaries which is required to be disclosed
in the Registration Statement and the Prospectus (other than as stated
therein), or which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the assets, properties or operations
thereof or the consummation of the transactions contemplated under
this Underwriting Agreement and the applicable Terms Agreement or the
performance by the Company of its obligations hereunder and
thereunder. The aggregate of all pending legal or governmental
proceedings to which the Company or any of its subsidiaries is a party
or of which any of their respective assets, properties or operations
is the subject which are not described in the Registration Statement
and the Prospectus, including ordinary routine litigation incidental
to the business, could not reasonably be expected to result in a
Material Adverse Effect.
-7-
(15) Accuracy of Exhibits. There are no contracts or documents
--------------------
which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed
as required.
(16) Absence of Further Requirements. No filing with, or
-------------------------------
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency, domestic or foreign, is necessary or required for the
performance by the Company of its obligations under this Underwriting
Agreement or the applicable Terms Agreement or in connection with the
transactions contemplated under this Underwriting Agreement and such
Terms Agreement, except such as have been already obtained or as may
be required under state securities laws.
(17) Possession of Intellectual Property. The Company and its
-----------------------------------
subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property")
necessary to carry on the business now operated by them, and neither
the Company nor any of its subsidiaries has received any notice or is
otherwise aware of any infringement of or conflict with asserted
rights of others with respect to any Intellectual Property or of any
facts or circumstances which would render any Intellectual Property
invalid or inadequate to protect the interest of the Company or any of
its subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(18) Possession of Licenses and Permits. The Company and its
----------------------------------
subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies
or bodies necessary to conduct the business now operated by them. The
Company and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure
to so comply would not, singly or in the aggregate, result in a
Material Adverse Effect. All of the Governmental Licenses are valid
and in full force and effect, except where the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to
be in full force and effect would not result in a Material Adverse
Effect. Neither the Company nor any of its subsidiaries has received
any notice of proceedings relating to the revocation or modification
of any such Governmental Licenses which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Effect.
-8-
(19) Title to Property. The Company and its subsidiaries have
-----------------
good and marketable title to all real property owned by the Company
and its subsidiaries and good title to all other properties owned by
them, in each case, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of any kind,
except (A) as otherwise stated in the Registration Statement and the
Prospectus or (B) those which do not, singly or in the aggregate,
materially affect the value of such property and do not interfere with
the use made and proposed to be made of such property by the Company
or any of its subsidiaries. All of the leases and subleases material
to the business of the Company and its subsidiaries considered as one
enterprise, and under which the Company or any of its subsidiaries
holds properties described in the Prospectus, are in full force and
effect, and neither the Company nor any of its subsidiaries has
received any notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of the Company or any of its
subsidiaries under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such subsidiary
of the continued possession of the leased or subleased premises under
any such lease or sublease.
(20) Investment Company Act. The Company is not, and upon the
----------------------
issuance and sale of the Underwritten Securities as herein
contemplated and the application of the net proceeds therefrom as
described in the Prospectus will not be, an "investment company"
within the meaning of the Investment Company Act of 1940, as amended
(the "1940 Act").
(21) Environmental Laws. Except as otherwise stated in the
------------------
Registration Statement and the Prospectus and except as would not,
singly or in the aggregate, result in a Material Adverse Effect, (A)
neither the Company nor any of its subsidiaries is in violation of any
federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof including any judicial or
administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or, to the knowledge of the Company,
threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental
Law against the Company or any of its subsidiaries and (D) there are
no events or
-9-
circumstances that might reasonably be expected to form the basis of
an order for clean-up or remediation, or an action, suit or proceeding
by any private party or governmental body or agency, against or
affecting the Company or any of its subsidiaries relating to Hazardous
Materials or any Environmental Laws.
(22) Public Utility Holding Company Act. The Company is exempt
----------------------------------
from all provisions of the Public Utility Holding Company Act of 1935
other than Section 9(a)(2) thereof.
(b) Officers' Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries and delivered to any Underwriter or
to counsel for the Underwriters in connection with the offering of the
Underwritten Securities shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby on the
date of such certificate and, unless subsequently amended or supplemented,
at each Representation Date subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) Underwritten Securities. The several commitments of the
Underwriters to purchase the Underwritten Securities pursuant to the
applicable Terms Agreement shall be deemed to have been made on the basis
of the representations and warranties herein contained and shall be subject
to the terms and conditions herein set forth.
(b) Option Underwritten Securities. In addition, subject to the terms
and conditions herein set forth, the Company may grant, if so provided in
the applicable Terms Agreement, an option to the Underwriters, severally
and not jointly, to purchase up to the number of the Option Underwritten
Securities set forth therein at a price per Option Underwritten Security
equal to the price per Initial Underwritten Security, less an amount equal
to any dividends or distributions declared by the Company and paid or
payable on the Initial Underwritten Securities but not payable on the
Option Underwritten Securities. Such option, if granted, will expire 30
days after the date of such Terms Agreement, and may be exercised in whole
or in part from time to time only for the purpose of covering over-
allotments which may be made in connection with the offering and
distribution of the Initial Underwritten Securities upon notice by
[________________] to the Company setting forth the number of Option
Underwritten Securities as to which the several Underwriters are then
exercising the option and the time, date and place of payment and delivery
for such Option Underwritten Securities. Any such time and date of payment
and delivery (each, a "Date of Delivery") shall be determined by
[_____________], but shall not be later than seven full business days after
the exercise of said option, nor in any event prior to the Closing Time,
unless otherwise agreed upon by [____________] and the Company. If the
option is exercised as to all or any portion of the Option Underwritten
Securities, each of the Underwriters, severally and not jointly, will
purchase that proportion of the total number of Option Underwritten
Securities then being purchased which the number of Initial Underwritten
Securities
-10-
each such Underwriter has severally agreed to purchase as set forth in such
Terms Agreement bears to the total number of Initial Underwritten
Securities, subject to such adjustments as [________________] in its
discretion shall make to eliminate any sales or purchases of a fractional
number of Option Underwritten Securities.
(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the offices of Winthrop,
Stimson, Xxxxxx & Xxxxxxx, One Battery Park Plaza, New York, New York, or
at such other place as shall be agreed upon by [________________] and the
Company, at 9:00 A.M. (Eastern time) on the third (fourth, if the pricing
occurs after 4:30 P.M. (Eastern time) on any given day) business day after
the date of the applicable Terms Agreement (unless postponed in accordance
with the provisions of Section 10 hereof), or such other time not later
than ten business days after such date as shall be agreed upon by
[_________________] and the Company (such time and date of payment and
delivery being herein called "Closing Time"). In addition, in the event
that the Underwriters have exercised their option, if any, to purchase any
or all of the Option Underwritten Securities, payment of the purchase price
for, and delivery of such Option Underwritten Securities, shall be made at
the above-mentioned offices of Winthrop, Stimson, Xxxxxx & Xxxxxxx, or at
such other place as shall be agreed upon by [_________________] and the
Company, on the relevant Date of Delivery as specified in the notice from
[_______________] to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against
delivery to [____________] for the respective accounts of the Underwriters
of the Underwritten Securities to be purchased by them. It is understood
that each Underwriter has authorized [_____________], for its account, to
accept delivery of, receipt for, and make payment of the purchase price
for, the Underwritten Securities which it has severally agreed to purchase.
[_______________], individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Underwritten Securities to be purchased by any
Underwriter whose funds have not been received by the Closing Time or the
relevant Date of Delivery, as the case may be, but such payment shall not
relieve such Underwriter from its obligations hereunder.
(d) Denominations, Registration. Certificates for the Underwritten
Securities shall be in such denominations and registered in such names as
[______________] may request in writing at least one full business day
prior to the Closing Time or the relevant Date of Delivery, as the case may
be. Certificates for the Underwritten Securities will be made available
for examination and packaging by [______________] in The City of New York
not later than 10:00 A.M. (Eastern time) on the business day prior to the
Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with
------------------------
[________________] and with each Underwriter participating in the offering of
Underwritten Securities, as follows:
-11-
(a) Compliance with Securities Regulations and Commission Requests.
The Company, subject to Section 3(b), will comply with the requirements of
Rule 430A of the 1933 Act Regulations and/or Rule 434 of the 1933 Act
Regulations, if and as applicable, and will notify [________________]
immediately, and confirm the notice in writing, of (i) the effectiveness of
any post-effective amendment to the Registration Statement or the filing of
any supplement or amendment to the Prospectus, (ii) the receipt of any
comments from the Commission, (iii) any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (iv) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of
any preliminary prospectus, or of the suspension of the qualification of
the Underwritten Securities for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such purposes.
The Company will promptly effect the filings necessary pursuant to Rule 424
and will take such steps as it deems necessary to ascertain promptly
whether the Prospectus transmitted for filing under Rule 424 was received
for filing by the Commission and, in the event that it was not, it will
promptly file the Prospectus. The Company will make every reasonable effort
to prevent the issuance of any stop order and, if any stop order is issued,
to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give [_______________]
notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b) of the 1933
Act Regulations), any Term Sheet or any amendment, supplement or revision
to either the prospectus included in the Registration Statement at the time
it became effective or to the Prospectus, whether pursuant to the 1933 Act,
the 1934 Act or otherwise, will furnish [______________] with copies of any
such documents a reasonable amount of time prior to such proposed filing or
use, as the case may be, and will not file or use any such document to
which [______________] or counsel for the Underwriters shall object.
(c) Delivery of Registration Statements. The Company has furnished
or will deliver to [______________] and counsel for the Underwriters,
without charge, signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to
be incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to [______________], without
charge, a conformed copy of the Registration Statement as originally filed
and of each amendment thereto (without exhibits) for each of the
Underwriters. Copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to any
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company will deliver to each
Underwriter, without charge, as many copies of each preliminary prospectus
as such
-12-
Underwriter may reasonably request, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company
will furnish to each Underwriter, without charge, during the period when
the Prospectus is required to be delivered under the 1933 Act or the 1934
Act, such number of copies of the Prospectus as such Underwriter may
reasonably request. The Prospectus and any amendments or supplements
thereto furnished to the Underwriters will be identical to any
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will
comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and
the 1934 Act Regulations so as to permit the completion of the distribution
of the Underwritten Securities as contemplated in this Underwriting
Agreement and the applicable Terms Agreement and in the Registration
Statement and the Prospectus. If at any time when the Prospectus is
required by the 1933 Act or the 1934 Act to be delivered in connection with
sales of the Securities, any event shall occur or condition shall exist as
a result of which it is necessary, in the opinion of counsel for the
Underwriters or for the Company, to amend the Registration Statement in
order that the Registration Statement will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or to
amend or supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein not misleading in
the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel, at
any such time to amend the Registration Statement or amend or supplement
the Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, the Company will promptly prepare and file with
the Commission, subject to Section 3(b), such amendment or supplement as
may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and
the Company will furnish to the Underwriters, without charge, such number
of copies of such amendment or supplement as the Underwriters may
reasonably request.
(f) Earning Statement. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earning
statement for the purposes of, and to provide the benefits contemplated by,
the last paragraph of Section 11(a) of the 1933 Act.
(g) Use of Proceeds. The Company will use the net proceeds received
by it from the sale of the Underwritten Securities in the manner specified
in the Prospectus under "Use of Proceeds".
-13-
(h) Listing. The Company will use its best efforts to effect the
listing of the Underwritten Securities on the New York Stock Exchange prior
to the Closing Time.
(i) Restriction on Sale of Securities. Between the date of the
applicable Terms Agreement and the Closing Time or such other date
specified in such Terms Agreement, the Company will not, without the prior
written consent of [______________], directly or indirectly, issue, sell,
offer to sell, grant any option for the sale of, or otherwise dispose of,
the securities specified in such Terms Agreement.
(j) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods required by the 1934 Act and the
1934 Act Regulations.
SECTION 4. Payment of Expenses.
-------------------
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Underwriting Agreement or the
applicable Terms Agreement, including (i) the preparation, printing and
filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of this Underwriting
Agreement, any Terms Agreement, any Agreement among Underwriters and such
other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Underwritten Securities, (iii)
the preparation, issuance and delivery of certificates for the Underwritten
Securities to the Underwriters, including any transfer taxes and any stamp
or other duties payable upon the sale, issuance or delivery of the
Underwritten Securities to the Underwriters, (iv) the fees and
disbursements of the Company's counsel, accountants and other advisors or
agents (including transfer agents and registrars), (v) the reasonable fees
and disbursements of counsel for the Underwriters in connection with the
preparation, printing and delivery of the Blue Sky Survey, (vi) the
printing and delivery to the Underwriters of copies of each preliminary
prospectus, any Term Sheet, and the Prospectus and any amendments or
supplements thereto, (vii) the fees and expenses incurred with respect to
the listing of the Underwritten Securities on the New York Stock Exchange
and (viii) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the
review, if any, by the National Association of Securities Dealers, Inc.
(the "NASD") of the terms of the sale of the Underwritten Securities.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by [______________] in accordance with the provisions of Section
5 or Section 9(b)(i) hereof, the Company shall reimburse the Underwriters
for all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
-14-
SECTION 5. Conditions of Underwriters' Obligations. The obligations
---------------------------------------
of the Underwriters to purchase and pay for the Underwritten Securities pursuant
to the applicable Terms Agreement are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any of its subsidiaries
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective under the 1933 Act, and no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the 1933 Act and no proceedings for that purpose shall have been initiated
or be pending or threatened by the Commission, and any request on the part
of the Commission for additional information shall have been complied with
to the reasonable satisfaction of counsel to the Underwriters. A
prospectus containing information relating to the description of the
Underwritten Securities, the specific method of distribution and similar
matters shall have been filed with the Commission in accordance with Rule
424(b)(1), (2), (3), (4) or (5), as applicable (or any required post-
effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430A), or,
if the Company has elected to rely upon Rule 434 of the 1933 Act
Regulations, a Term Sheet including the Rule 434 Information shall have
been filed with the Commission in accordance with Rule 424(b)(7).
(b) Opinion of Counsel for Company. At Closing Time, [______________]
shall have received the favorable opinion, dated as of Closing Time, of
Xxxxx Xxxxxx & Xxxxxx, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters, to the
effect set forth in Exhibit B hereto and to such further effect as counsel
to the Underwriters may reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Time,
[__________] shall have received the favorable opinion, dated as of Closing
Time, of Winthrop, Stimson, Xxxxxx & Xxxxxxx, counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the
other Underwriters, with respect to the matters set forth in (5), (7), (8),
(9), (13), (21) (solely as to the information in the Prospectus under
"Description of Common Stock" or any caption purporting to describe any
such Securities) and (22) of Exhibit B hereto. In giving such opinion,
such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York and the federal
law of the United States, upon the opinion of Xxxxx Xxxxxx & Xxxxxx
delivered to [__________]. Such counsel may also state that, insofar as
such opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
-15-
(d) Officers' Certificate. At Closing Time, there shall not have
been, since the date of the applicable Terms Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and [_______________] shall have received a
certificate of the President or a Vice President of the Company and of the
chief financial officer or chief accounting officer of the Company, dated
as of Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Section 1 are
true and correct with the same force and effect as though expressly made at
and as of the Closing Time, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Time and (iv) no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or threatened by the
Commission.
(e) Accountant's Comfort Letter. At the time of the execution of the
applicable Terms Agreement, [_____________] shall have received from
Coopers & Xxxxxxx L.L.P. a letter dated such date, in form and substance
satisfactory to [_______________], together with signed or reproduced
copies of such letter for each of the other Underwriters, 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 the Registration Statement
and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, [_________________]
shall have received from Coopers & Xxxxxxx L.L.P. a letter, dated as of
Closing Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (e) of this Section 5, except that
the specified date referred to shall be a date not more than three business
days prior to the Closing Time.
(g) Approval of Listing. At Closing Time, the Underwritten Securities
shall have been approved for listing, subject only to official notice of
issuance, if and as specified in the applicable Terms Agreement.
(h) No Objection. If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the NASD
shall not have raised any objection with respect to the fairness and
reasonableness of the underwriting terms and arrangements.
(i) Lock-up Agreements. On the date of the applicable Terms
Agreement, [______________] shall have received, in form and substance
satisfactory to it, each lock-up agreement, if any, specified in such Terms
Agreement as being required to be delivered by the persons listed therein.
-16-
(j) Over-Allotment Option. In the event that the Underwriters are
granted an over-allotment option by the Company in the applicable Terms
Agreement and the Underwriters exercise their option to purchase all or any
portion of the Option Underwritten Securities, the representations and
warranties of the Company contained herein and the statements in any
certificates furnished by the Company or any of its subsidiaries hereunder
shall be true and correct as of each Date of Delivery, and, at the relevant
Date of Delivery, [_______________] shall have received:
(1) A certificate, dated such Date of Delivery, of the President
or a Vice President of the Company and the chief financial officer or
chief accounting officer of the Company, confirming that the
certificate delivered at the Closing Time pursuant to Section 5(d)
hereof remains true and correct as of such Date of Delivery.
(2) The favorable opinion of Xxxxx Xxxxxx & Xxxxxx, counsel for
the Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities and otherwise to the same effect as the
opinion required by Section 5(b) hereof.
(3) The favorable opinion of Winthrop, Stimson, Xxxxxx & Xxxxxxx,
counsel for the Underwriters, dated such Date of Delivery, relating to
the Option Underwritten Securities and otherwise to the same effect as
the opinion required by Section 5(c) hereof.
(4) A letter from Coopers & Xxxxxxx L.L.P. in form and substance
satisfactory to [_______________] and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished
to [_______________] pursuant to Section 5(f) hereof, except that the
"specified date" on the letter furnished pursuant to this paragraph
shall be a date not more than three business days prior to such Date
of Delivery.
(k) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of enabling them
to pass upon the issuance and sale of the Underwritten Securities as herein
contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection
with the issuance and sale of the Underwritten Securities as herein
contemplated shall be satisfactory in form and substance to
[________________] and counsel for the Underwriters.
(l) Termination of Terms Agreement. If any condition specified in
this Section 5 shall not have been fulfilled when and as required to be
fulfilled, the applicable Terms Agreement (or, with respect to the
Underwriters' exercise of any applicable over-allotment option for the
purchase of Option Underwritten Securities
-17-
on a Date of Delivery after the Closing Time, the obligations of the
Underwriters to purchase the Option Underwritten Securities on such Date of
Delivery) may be terminated by [_______________] by notice to the Company
at any time at or prior to the Closing Time (or such Date of Delivery, as
applicable), and such termination shall be without liability of any party
to any other party except as provided in Section 4 and except that Sections
1, 6, 7 and 8 shall survive any such termination and remain in full force
and effect.
SECTION 6. Indemnification.
---------------
(a) Indemnification of Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls
any Underwriter within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act as follows:
(1) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information deemed to be a part
thereof, if applicable, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of
a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company; and
(3) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by
[________________]), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (1) or
(2) above;
-18-
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to
the Company by any Underwriter through [________________] expressly for use
in the Registration Statement (or any amendment thereto), including the
Rule 430A Information and the Rule 434 Information deemed to be a part
thereof, if applicable, or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto); and provided, further, that the
Company will not be liable to any Underwriter with respect to any
preliminary prospectus or Prospectus to the extent that any such loss,
liability, claim, damage or expense arises from the fact that such
Underwriter, in contravention of a requirement of any applicable law, sold
the Securities to a person to whom such Underwriter failed to send or give,
prior to or at the Closing Time, a copy of the Prospectus as then amended
or supplemented if, (i) the Company has previously furnished copies thereof
(in sufficient number and sufficiently in advance of the Closing Time to
allow for distribution by the Closing Time) to the Underwriters and the
loss, liability, claim, damage or expense of any such Underwriter resulted
from an untrue statement or omission or an alleged untrue statement or
omission of a material fact contained in or omitted from the preliminary
prospectus or an earlier Prospectus which was corrected in the later, if
applicable, amended or supplemented Prospectus prior to the Closing Time,
and (ii) such failure to give or send such Prospectus by the Closing Time
to the party or parties asserting such loss, liability, claim, damage or
expense would have constituted the sole defense to the claim asserted by
such person.
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company,
its directors, each of its officers who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and
all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information deemed to
be a part thereof, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through [________________] expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof
and in any event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 6(a) above, counsel to the
indemnified parties shall be
-19-
selected by [______________], and, in the case of parties indemnified
pursuant to Section 6(b) above, counsel to the indemnified parties shall be
selected by the Company. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that counsel
to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event
shall the indemnifying parties be liable for fees and expenses of more than
one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect
to any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever in respect
of which indemnification or contribution could be sought under this Section
6 or Section 7 hereof (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent
(i) includes an unconditional release of each party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii)
does not include a statement as to, or an admission of fault, culpability
or a failure to act by or on behalf of, any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(2) effected without its written consent
if (i) such settlement is entered into more than 45 days after receipt by
such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least
30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in
------------
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (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 Underwritten Securities pursuant to the applicable Terms
Agreement or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) 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 which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
-20-
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
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of such Underwritten Securities (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the Term Sheet, bear to the
aggregate initial public offering price of such Underwritten Securities as set
forth on such cover.
The relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or 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 and
equitable if contribution pursuant to this Section 7 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 which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several
-21-
in proportion to the number of Initial Underwritten Securities set forth
opposite their respective names in the applicable Terms Agreement, and not
joint.
SECTION 8. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery. All representations, warranties and agreements contained in this
--------
Underwriting Agreement or the applicable Terms Agreement or in certificates of
officers of the Company submitted pursuant hereto or thereto shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any Underwriter or controlling person, or by or on behalf of the
Company, and shall survive delivery of and payment for the Underwritten
Securities.
SECTION 9. Termination.
-----------
(a) Underwriting Agreement. This Underwriting Agreement (excluding
the applicable Terms Agreement) may be terminated for any reason at any
time by the Company or by [_________________] upon the giving of 30 days'
prior written notice of such termination to the other party hereto.
(b) Terms Agreement. [_______________] may terminate the applicable
Terms Agreement, by notice to the Company, at any time at or prior to the
Closing Time or any relevant Date of Delivery, if (i) there has been, since
the time of execution of such Terms Agreement or since the respective dates
as of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business, or (ii) there has occurred any material adverse change in the
financial markets in the United States, or any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political,
financial or economic conditions, in each case the effect of which is such
as to make it, in the judgment of [________________], impracticable to
market the Underwritten Securities or to enforce contracts for the sale of
the Underwritten Securities, or (iii) trading in any securities of the
Company has been suspended or limited by the Commission or the New York
Stock Exchange, or if trading generally on the New York Stock Exchange or
the American Stock Exchange or in the Nasdaq National Market has been
suspended or limited, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices have been required, by either of said
exchanges or by such system or by order of the Commission, the NASD or any
other governmental authority, or (iv) a banking moratorium has been
declared by either federal or New York authorities.
(c) Liabilities. If this Underwriting Agreement or the applicable
Terms Agreement is terminated pursuant to this Section 9, such termination
shall be without liability of any party to any other party except as
provided in Section 4 hereof, and provided further that Sections 1, 6, 7
and 8 shall survive such termination and remain in full force and effect.
-22-
SECTION 10. Default by One or More of the Underwriters. If one or
------------------------------------------
more of the Underwriters shall fail at the Closing Time or the relevant Date of
Delivery, as the case may be, to purchase the Underwritten Securities which it
or they are obligated to purchase under the applicable Terms Agreement (the
"Defaulted Securities"), then [_________________] shall have the right, within
24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, [________________] shall not have completed
such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Underwritten Securities to be purchased on such date pursuant to
such Terms Agreement, the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations under such Terms
Agreement bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
Underwritten Securities to be purchased on such date pursuant to such Terms
Agreement, such Terms Agreement (or, with respect to the Underwriters'
exercise of any applicable over-allotment option for the purchase of Option
Underwritten Securities on a Date of Delivery after the Closing Time, the
obligations of the Underwriters to purchase, and the Company to sell, such
Option Underwritten Securities on such Date of Delivery) shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a
termination of the applicable Terms Agreement or (ii) in the case of a Date of
Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Company with respect to the related Option Underwritten
Securities, as the case may be, either [______________] or the Company shall
have the right to postpone the Closing Time or the relevant Date of Delivery, as
the case may be, for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or the Prospectus or in any other
documents or arrangements.
SECTION 11. Notices. All notices and other communications hereunder
-------
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to [__________________] at
[_____________________], attention of [__________________]; and notices to the
Company shall be directed to it at 000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx,
00000, attention of Treasurer.
SECTION 12. Parties. This Underwriting Agreement and the applicable
-------
Terms Agreement shall each inure to the benefit of and be binding upon the
Company,
-23-
[_______________] and, upon execution of such Terms Agreement, any other
Underwriters and their respective successors. Nothing expressed or mentioned in
this Underwriting Agreement or such Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Underwriting Agreement or such Terms Agreement or any provision
herein or therein contained. This Underwriting Agreement and such Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Underwritten Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT AND
----------------------
ANY APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW
YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings
------------------
herein are for convenience only and shall not affect the construction hereof.
-24-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Underwriting Agreement, along with all counterparts, will become a binding
agreement between [_______________] and the Company in accordance with its
terms.
Very truly yours,
CONNECTICUT ENERGY CORPORATION
By:___________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first
above written:
[___________________________]
By:_________________________
Authorized Signatory
-25-
Exhibit A
CONNECTICUT ENERGY CORPORATION
(a Connecticut corporation)
Common Stock
TERMS AGREEMENT
---------------
[__________] [__], 199[__]
To: Connecticut Energy Corporation
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
We understand that Connecticut Energy Corporation, a Connecticut
corporation (the "Company"), proposes to issue and sell [__________] shares of
its common stock, par value $1 per share (the "Common Stock") (such securities
also being hereinafter referred to as the "Initial Underwritten Securities").
Subject to the terms and conditions set forth or incorporated by reference
herein, we and the other underwriters named below (the "Underwriters"), offer to
purchase, severally and not jointly, the number of Initial Underwritten
Securities opposite our respective names set forth below at the purchase price
set forth below, and a proportionate share of Option Underwritten Securities set
forth below, to the extent any are purchased.
Number
Underwriter of Initial Underwritten Securities
----------- ----------------------------------
[__________] [____________]
[__________] [____________]
[__________] [____________]
Total
==============
The Underwritten Securities shall have the following terms:
Title:
Number of shares:
Number of Option Underwritten Securities:
Initial public offering price per share: $
Purchase price per share: $
Listing requirements:
Black-out provisions:
Lock-up provisions:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I
hereto entitled "CONNECTICUT ENERGY CORPORATION--Common Stock--UNDERWRITING
AGREEMENT" are hereby incorporated by reference in their entirety herein and
shall be deemed to be a part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein. Terms defined in such
document are used herein as therein defined.
Please accept this offer no later than [___] o'clock P.M. (New York
City time) on [___________] [___], 199[__] by signing a copy of this Terms
Agreement in the space set forth below and returning the signed copy to us.
Very truly yours,
[____________________________]
By________________________________
Authorized Signatory
Acting on behalf of itself and the other named
Underwriters.
Accepted:
CONNECTICUT ENERGY CORPORATION
By_______________________
Name:
Title:
Exhibit B
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
1. Company is a corporation duly incorporated and validly existing in
good standing under the laws of the State of Connecticut with full corporate
power and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Prospectus (and any
amendment or supplement thereto), and is duly qualified to conduct its business
and is in good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such qualification, except
where the failure to so qualify does not have a material adverse effect on the
condition (financial or other), business, properties, net worth or results of
operations of the Company and Southern taken as a whole;
2. Southern is a corporation duly organized and validly existing under
the laws of the State of Connecticut, with full corporate power and authority to
own, lease, and operate its properties and to conduct its business as described
in the Registration Statement and the Prospectus (and any amendment or
supplement thereto), and is duly qualified to conduct its business and is in
good standing in each jurisdiction or place where the nature of its properties
or the conduct of its business requires such qualification, except where the
failure to so qualify does not have a material adverse effect on the condition
(financial or other), business, properties, net worth or results of operations
of Southern and the Company taken as a whole; and all the outstanding shares of
capital stock of Southern have been duly authorized and validly issued, are
fully paid and nonassessable, and are owned by the Company directly, free and
clear of any perfected security interest;
3. The authorized and outstanding capital stock of the Company is as set
forth in the Prospectus; and the authorized capital stock of the Company
conforms in all material respects as to legal matters to the description thereof
contained in the Prospectus under "Description of Common Stock";
4. All the shares of capital stock of the Company outstanding prior to
the issuance of the Underwritten Securities have been duly authorized and
validly issued, and are fully paid and nonassessable;
5. The Underwritten Securities have been duly authorized and, when issued
and delivered to the Underwriters against payment therefor in accordance with
the terms of the Underwriting Agreement and the applicable Terms Agreement, will
be validly issued, fully paid and nonassessable and free of any preemptive, or
to our knowledge, similar rights that entitle or will entitle any person to
acquire any Underwritten Securities upon the issuance thereof by the Company;
6. The form of certificates for the Underwritten Securities conforms to
the requirements of the Connecticut Business Corporation Act, with any
applicable requirements of the certificate or articles of incorporation or
bylaws of the Company and with the requirements of the New York Stock Exchange;
no holder of Underwritten Securities is or will be subject to personal liability
by reason of being such a holder;
7. The Underwritten Securities being sold pursuant to the applicable
Terms Agreement conform in all material respects to the statements relating
thereto contained in the Prospectus and are in substantially the form filed or
incorporated by reference, as the case may be, as an exhibit to the Registration
Statement;
8. The Registration Statement and all post-effective amendments, if any,
have become effective under the Act and, to the best of our knowledge after
reasonable inquiry, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose are
pending before or threatened by the Commission;
9. The Company has corporate power and authority to enter into the
Underwriting Agreement and the applicable Terms Agreement, and to issue, sell
and deliver the Underwritten Securities to the Underwriters as provided therein,
and the Underwriting Agreement and such Terms Agreement have been duly
authorized, executed and delivered by the Company;
10. To the best of our knowledge after reasonable inquiry, neither the
Company nor Southern is in violation of its certificate or articles of
incorporation or bylaws, or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any material
bond, debenture, note or other evidence of indebtedness, except as may be
disclosed in the Prospectus;
11. Neither the offer, sale or delivery of the Underwritten Securities,
the execution, delivery or performance of the Underwriting Agreement or the
applicable Terms Agreement, compliance by the Company with the provisions
thereof nor consummation by the Company of the transactions contemplated thereby
conflicts or will conflict with or constitutes or will constitute a breach of,
or a default under, the certificate or articles of incorporation or bylaws or
other organizational documents, of the Company or Southern or any agreement,
indenture, lease or other instrument to which the Company or Southern is a party
or by which either of them or any of their respective properties is bound that
is an exhibit to the Registration Statement or to any document incorporated by
reference therein, or is known to us, or will result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or Southern, nor will any such action result in any violation of any
existing law, regulation, ruling (assuming compliance with all applicable state
securities and Blue Sky laws), judgment, injunction, order or decree known to
us, applicable to the Company, Southern or any of their respective properties;
12. No consent, approval, authorization or other order of, or registration
or filing with, any court, regulatory body, administrative agency or other
governmental body, agency, or official is required on the part of the Company
(except as have been obtained under the 1933 Act and the 1934 Act or such as may
be required under state securities or Blue Sky
laws governing the purchase and distribution of the Underwritten Securities) for
the valid issuance and sale of the Underwritten Securities to the Underwriters
as contemplated by the Underwriting Agreement;
13. The Registration Statement and the Prospectus and any supplements or
amendments thereto (except for the financial statements and the notes thereto
and the schedules and other financial and statistical data included therein, as
to which we do not express any opinion) comply as to form in all material
respects with the requirements of the 1933 Act; and each of the Incorporated
Documents (except for the financial statements and the notes thereto and the
schedules and other financial and statistical data included therein, as to which
we do not express any opinion) complies as to form in all material respects with
the 1934 Act and the rules and regulations of the Commission thereunder;
14. To the best of our knowledge, there are no statutes or regulations
that are required to be described in the Prospectus that are not described as
required;
15. To the best of our knowledge after reasonable inquiry, (A) other than
as described or contemplated in the Prospectus (or any supplement thereto), or
any document incorporated by reference therein, there are no legal or
governmental proceedings pending or threatened against the Company or Southern,
or to which the Company or Southern, or any of their property, is subject, which
are required to be described in the Registration Statement or Prospectus (or any
amendment or supplement thereto) and (B) there are no agreements, contracts,
indentures, leases or other instruments, that are required to be described in
the Registration Statement or the Prospectus (or any amendment or supplement
thereto) or to be filed as an exhibit to the Registration Statement or any
document incorporated by reference therein, that are not described or filed as
required, as the case may be;
16. The Company is exempt from all provisions of the Public Utility
Holding Company Act of 1935 other than Section 9(a)(2) thereof;
17. The Company is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act");
18. Except as specifically disclosed in the documents incorporated by
reference in the Registration Statement heretofore filed (and subject to the
qualifications contained therein), to the best of our knowledge after reasonable
inquiry, neither the Company nor Southern is in violation of any law, ordinance,
administrative or governmental rule or regulation applicable to the Company or
Southern or of any decree of any court or governmental agency or body having
jurisdiction over the Company or Southern, except where any such violation does
not have, individually or in the aggregate, a material adverse effect on the
condition (financial or other), business, net worth or results of operations of
the Company and Southern taken as a whole;
19. Except as described in the Prospectus, there are no outstanding
options, warrants or other rights calling for the issuance of, and we do not
know of any commitment, plan or arrangement to issue, any shares of capital
stock of the Company or any security convertible into or exchangeable or
exercisable for capital stock of the Company;
20. Except as described in the Prospectus, there is no holder of any
security of the Company or any other person who has the right, contractual or
otherwise, to cause the Company to sell or otherwise issue to them, or to permit
them to underwrite the sale of, the Underwritten Securities or the right to have
any Common Stock or other securities of the Company included in the Registration
Statement or the right, as a result of the filing of the Registration Statement,
to require registration under the Act of any shares of Common Stock or other
securities of the Company;
21. The statements in the Registration Statement and Prospectus, insofar
as they are descriptions of the Underwritten Securities, contracts, agreements
or other legal documents, or refer to statements of law or legal conclusions,
are accurate and present fairly the information required to be shown; and
22. Although we have not undertaken, except as otherwise indicated herein,
to determine independently, and we do not assume any responsibility for, the
accuracy or completeness of the statements in the Registration Statement, we
participated in the preparation of the Registration Statement and the
Prospectus, including review and discussion of the contents thereof (including
review and discussion of the contents of all documents incorporated by reference
therein) and nothing has come to our attention that has caused us to believe
that, at the time it became effective, the Registration Statement (including the
documents incorporated by reference therein and all information (if any) deemed
to be a part of the Registration Statement pursuant to Rule 430A under the Act)
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus, at the time it was first filed with the
Commission pursuant to Rule 424(b) under the Act and at the Closing Time or the
Delivery Date, as the case may be, contained or contains an untrue statement of
a material fact or omitted or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading (it being understood that we do not express any
opinion with respect to the financial statements and the notes thereto and the
schedules and other financial and statistical data included in the Registration
Statement or the Prospectus or any documents incorporated by reference therein).
This opinion is given to you solely for your use in connection with
the Underwriting Agreement and the applicable Terms Agreement and the
transactions contemplated thereunder, and may not be relied upon by any other
person or for any other purpose without our prior written consent, except that
Winthrop, Stimson, Xxxxxx & Xxxxxxx may rely on this opinion as to matters of
Connecticut law.
B-4
Annex I
FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(e)
We are independent public accountants with respect to the Company
within the meaning of the 1933 Act and the applicable published 1933 Act
Regulations:
(A) in our opinion, the audited financial statements and the related
financial statement schedules included or incorporated by reference in the
Registration Statement and the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and the
published rules and regulations thereunder;
(B) on the basis of procedures (but not an examination in accordance
with generally accepted auditing standards) consisting of a reading of the
unaudited interim consolidated financial statements of the Company for the
three month periods ended ________, 19__ and _____, 19__, the three and six
month periods ended ________, 19__ and _____, 19__, and the three and nine
month periods ended ________, 19__ and _____, 19__, included or incorporated
by reference in the Registration Statement and the Prospectus (collectively,
the "10-Q Financials"), a reading of the unaudited interim consolidated
financial statements of the Company for the _____-month periods ended
________, 19__ and _____, 19__, included in the Registration Statement and
the Prospectus (the "_____-month financials"), a reading of the latest
available unaudited interim consolidated financial statements of the Company,
a reading of the minutes of all meetings of the stockholders and directors of
the Company and its subsidiaries and the Committees of the Company's Board of
Directors and any subsidiary committees since [day after end of last audited
period], inquiries of certain officials of the Company and its subsidiaries
responsible for financial and accounting matters, a review of interim
financial information in accordance with standards established by the
American Institute of Certified Public Accountants in Statement on Auditing
Standards No. 71, Interim Financial Information ("SAS 71"), with respect to
the [description of relevant periods] and such other inquiries and procedures
as may be specified in such letter, nothing came to our attention that caused
us to believe that:
(a) the 10-Q Financials incorporated by reference in the
Registration Statement and the Prospectus do not comply as to form in
all material respects with the applicable accounting requirements of
the 1934 Act and the 1934 Act Regulations applicable to unaudited
financial statements included in Form 10-Q or any material
modifications should be made to the 10-Q Financials incorporated by
reference in the Registration Statement and the Prospectus for them to
be in conformity with generally accepted accounting principles;
(b) the _____-month financials included in the Registration
Statement and the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act
and the 1933 Act
B-1
Regulations applicable to unaudited interim financial statements
included in registration statements or any material modifications
should be made to the _____-month financials included in the
Registration Statement and the Prospectus for them to be in conformity
with generally accepted accounting principles;
(c) at [_________, 19__ and at] a specified date not more than
five days prior to the date of the applicable Terms Agreement, there
was any change in the _________ of the Company and its subsidiaries or
any decrease in the __________ of the Company and its subsidiaries or
any increase in the ________ of the Company and its subsidiaries, in
each case as compared with amounts shown in the latest balance sheet
included in the Registration Statement and the Prospectus, except in
each case for changes, decreases or increases that the Registration
Statement and the Prospectus disclose have occurred or may occur; or
(d) [for the period from ________, 19__ to __________, 19__ and]
for the period from __________, 19__ at a specified date not more than
five days prior to the date of the applicable Terms Agreement, there
was any change in the decrease in _____________, __________ or
__________, in each case as compared with the comparable period in the
preceding year, except in each case for any decreases that the
Registration Statement and the Prospectus discloses have occurred or
may occur;
(C) based upon the procedures set forth in clause (ii) above and a
reading of the Selected Financial Data included in the Registration Statement
and the Prospectus and a reading of the financial statements from which such
data were derived, nothing came to our attention that caused us to believe
that the Selected Financial Data included in the Registration Statement and
the Prospectus do not comply as to form in all material respects with the
disclosure requirements of Item 301 of Regulation S-K of the 1933 Act, that
the amounts included in the Selected Financial Data are not in agreement with
the corresponding amounts in the audited consolidated financial statements
for the respective periods or that the financial statements not included in
the Registration Statement and the Prospectus from which certain such data
were derived are not in conformity with generally accepted accounting
principles;
(D) we have compared the information in the Registration Statement and
the Prospectus under selected captions with the disclosure requirements of
Regulation S-K of the 1933 Act and on the basis of limited procedures
specified herein, nothing came to our attention that caused us to believe
that this information does not comply as to form in all material respects
with the disclosure requirements of Items 302, 402 and 503(d), respectively,
of Regulation S-K;
(E) based upon the procedures set forth in clause (ii) above, a
reading of the unaudited financial statements of the Company for the most
recent period that have not been included in the Registration Statement and
the Prospectus and a review of such financial statements in accordance with
SAS 71, nothing came to our attention that
B-2
caused us to believe that the unaudited amounts for ___________ [for the most
recent period] do not agree with the amounts set forth in the unaudited
consolidated financial statements for those periods or that such unaudited
amounts were not determined on a basis substantially consistent with that of
the corresponding amounts in the audited consolidated financial statements;
(F) in addition to the procedures referred to in clause (ii) above,
we have performed other procedures, not constituting an audit, with respect
to certain amounts, percentages, numerical data and financial information
appearing in the Registration Statement and the Prospectus, which are
specified herein, and have compared certain of such items with, and have
found such items to be in agreement with, the accounting and financial
records of the Company.
B-3
