1
EXHIBIT 1.1
DRAFT 2/24/97
MAPCO INC.
$[aggregate principal amount of debt securities]
UNDERWRITING AGREEMENT
_____ __, 199_
To the Representative(s) of the several Underwriters named in the respective
Terms Agreements hereinafter described.
Dear Sirs:
MAPCO Inc., a Delaware corporation (the "Company"), proposes to
issue and sell up to $______________ aggregate principal amount of its
_____________________ (the "Securities"), from time to time in one or more
offerings on the terms and conditions determined at the time of the sale. The
Securities are to be issued pursuant to an Indenture dated as of ______ __,
1997 (the "Indenture") to be entered into between the Company and [trustee] as
trustee (the "Trustee"), the form of which has been filed as an exhibit to the
Registration Statement (as defined below). Each issue of Securities may vary
as to the aggregate principal amount, maturity date, interest rate or rates and
timing of payments thereof, redemption provisions, conversion provisions and
sinking fund requirements, if any, and any other variable terms or rights
which the Indenture contemplates may be set forth in the Securities as issued
from time to time.
This confirms the agreement that, whenever the Company determines
to make an offering of Securities through one or more underwriters (an
"Underwriter" or the "Underwriters") for whom you (the "Representative(s)" or
"you") are acting as Representatives, it will enter into a Terms Agreement (a
"Terms Agreement") with you and such Underwriter or Underwriters providing for
the sale of such Securities to, and the purchase and offering thereof by, you
and such Underwriter or Underwriters. The Terms Agreement shall be
substantially in the form of Exhibit A hereto and shall specify such applicable
information as is indicated in such Exhibit and such other information as the
parties executing such Terms Agreement shall determine. The Terms Agreement
will incorporate by reference the provisions of this Agreement (as defined
below). Each offering of Securities will be governed by this Agreement, as
supplemented by the applicable Terms Agreement, and the Agreement and such
Terms Agreement shall inure to the benefit of, and be binding upon, each
Underwriter participating in the offering of the Securities. Unless the
context otherwise requires, as used herein, the term "Agreement" shall refer to
this Underwriting Agreement, dated as of ___________, 199__, as executed by
the Company, as supplemented by the applicable Terms Agreement, as executed by
the Company and by, and on behalf of, the Representatives and the Underwriter
or Underwriters which are parties thereto.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-20837)
relating to the registration of the Securities under the Securities Act of
1933, as amended (the "Securities
2
Act"), and the offering thereof from time to time in accordance with Rule 415
under the rules and regulations of the Commission under the Securities Act (the
"Securities Act Regulations"), which registration statement has been declared
effective by the Commission and copies of which have heretofore been delivered
to you. The Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"). Such registration statement, in
the form in which it was declared effective, as amended through the date
hereof, including all documents incorporated or deemed to be incorporated by
reference therein and the information, if any, deemed to be part thereof
pursuant to Rule 434 of the Securities Act Regulations (or otherwise) through
the date hereof, and any registration statement filed pursuant to Rule 462(b)
of the Securities Act Regulations, including all exhibits thereto is
hereinafter referred to as the "Registration Statement." The Company proposes
to file with the Commission pursuant to Rule 424(b) of the Securities Act
Regulations a supplement (the "Prospectus Supplement") to the Base Prospectus
(as defined below) relating to the Securities and the prospectus dated
__________, 1997 (the "Base Prospectus") relating to the Securities, and has
previously advised you of all further information (financial and other) with
respect to the Company set forth therein. The Base Prospectus together with
the Prospectus Supplement, in their respective forms on the date hereof (being
the forms in which they are to be filed with the Commission pursuant to Rule
424(b) of the Securities Act Regulations), including all documents incorporated
or deemed to be incorporated by reference therein and the information, if any,
deemed to be part thereof pursuant to Rule 434 of the Securities Act
Regulations through the date hereof, are hereinafter referred to as the
"Prospectus," except that if any revised prospectus or prospectus supplement
shall be provided to the Underwriters by the Company for use in connection with
the offering of the Securities which differs from the Prospectus (whether or
not such revised prospectus or prospectus supplement is required to be filed by
the Company pursuant to Rule 424(b) of the Securities Act Regulations), the
term "Prospectus" shall also refer to such revised prospectus or prospectus
supplement, as the case may be, from and after the time it is first provided to
the Underwriters for such use. Unless the context otherwise requires, all
references in this Agreement to documents, financial statements and schedules
and other information which is "contained," "included," "stated," "described"
or "referred to" in the Registration Statement or the Prospectus (and all other
references of like import) shall be deemed to mean and include all such
documents, financial statements and schedules and other information which is or
is deemed to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement or the Prospectus shall
be deemed to mean and include the filing of any document under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), after the date of this
Agreement which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be. If the Company
elects to rely on Rule 434 of the Securities Act Regulations, all references to
the Prospectus shall be deemed to include, without limitation, the form of
prospectus and the abbreviated term sheet, taken together, provided to the
Underwriters by the Company in reliance on Rule 434 of the Securities Act
Regulations (the "Rule 434 Prospectus"). If the Company files a registration
statement to register a portion of the Securities and relies on Rule 462(b) of
the Securities Act Regulations for such registration statement to become
effective upon filing with the Commission (the "Rule 462 Registration
Statement"), then any reference to "Registration Statement" herein shall be
deemed to be to both the registration statement referred to above (No.
333-20837) and the
-2-
3
Rule 462 Registration Statement, as each such registration statement may be
amended pursuant to the Securities Act.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY.
The Company represents and warrants to each Underwriter as of the date hereof,
as of the date of the applicable Terms Agreement and as of the Closing Time
referred to in Section 3 hereof, and agrees with each Underwriter as follows:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act and the Securities Act Regulations and the
conditions for use of Form S-3, as set forth in the general instructions
thereto, have been satisfied. The Company has filed with the Commission
the Registration Statement and has filed such amendments thereto as may
have been required to the date hereof. The Registration Statement
(which includes any post-effective amendment thereto) has been declared
effective by the Commission; no stop order suspending the effectiveness
of such Registration Statement has been issued; and no proceeding for
that purpose has been initiated or threatened by the Commission and the
Indenture has been qualified under the Trust Indenture Act;
(b) The Registration Statement, the Prospectus and the
Indenture, at the time the Registration Statement and any amendments
thereto became effective and as of the date hereof, as of the date of
the applicable Terms Agreement and as of the Closing Time, complied in
all material respects with the applicable requirements of the Securities
Act, the Securities Act Regulations and the Trust Indenture Act and the
rules and regulations thereunder (the "Trust Indenture Act
Regulations"). The Registration Statement, at the time the Registration
Statement and any amendments thereto became effective and as of the date
hereof, as of the date of the applicable Terms Agreement and as of the
Closing Time, did not, and will not, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus, at the time the Registration Statement and any amendments
thereto became effective and as of the date hereof, as of the date of
the applicable Terms Agreement and as of the Closing Time (unless the
term "Prospectus" refers to a prospectus which has been provided to the
Underwriters by the Company for use in connection with the offering of
the Securities which differs from the Prospectus filed with the
Commission pursuant to Rule 424(b) of the Securities Act Regulations, in
which case also at the time the Prospectus is first provided to the
Underwriters for such use) did not, and will not, contain any untrue
statement 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. The two
preceding sentences do not apply to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification ("Form T-1") of the Trustee under the Trust Indenture Act
or (ii) information contained in or omitted from the Registration
Statement or the Prospectus (or any supplement thereto) in reliance upon
and in conformity with written information furnished to the Company
through the Representatives by or on behalf of any Underwriter
specifically for use therein (the "Underwriters' Information"). For
purposes of this Section 1(b), all references to the Registration
Statement, any post-effective amendments thereto and the Prospectus
shall be deemed to include, without
- 3 -
4
limitation, any electronically transmitted copies thereof, including,
without limitation, any copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis, and Retrieval system ("XXXXX");
(c) The documents incorporated by reference or deemed to be
incorporated by reference in the Prospectus, when they became effective
and at the time they were filed with the Commission, complied and will
comply in all material respects with the requirements of the Exchange
Act and the rules and regulations of the Commission thereunder (the
"Exchange Act Regulations"), and none of such documents 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; and any further documents so filed and
incorporated by reference in the Prospectus, when such documents are
filed with the Commission, will conform in all material respects to the
requirements of the Exchange Act and the Exchange Act Regulations and
will not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(d) The Company and each of its subsidiaries have been duly
incorporated and are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incorporation, are
duly qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective ownership or
lease of property or the conduct of their respective businesses requires
such qualification, and have all power and authority necessary to own or
hold their respective properties and to conduct the businesses in which
they are engaged, except where the failure to so qualify or have such
power or authority would not have, singularly or in the aggregate, a
material adverse effect on the financial condition, results of
operations or business of the Company and its subsidiaries taken as a
whole;
(e) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully paid
and non-assessable and are not subject to preemptive or similar rights
and conform to the description thereof contained in the Prospectus;
(f) The Securities being sold pursuant to the Terms Agreement
have, as of the date of the Terms Agreement, been duly authorized and,
when the Securities are executed and authenticated in accordance with
the provisions of the Indenture and issued and delivered against payment
therefor as provided in the Terms Agreement with respect to such
Securities, such Securities will have been duly executed, authenticated,
issued and delivered and will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Indenture, in each case enforceable against the Company in accordance
with their respective terms, subject, as to enforcement, to bankruptcy,
insolvency, moratorium, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles (regardless of whether the enforcement is sought in a
proceeding at law or in equity); which Securities will be in the form
filed as an exhibit to the Registration Statement in all material
respects; the Indenture has been duly
- 4 -
5
authorized and, at the Closing Time for such Securities, the Indenture
will constitute a valid and legally binding agreement, enforceable
against the Company in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, moratorium, reorganization and
other laws of general applicability relating to or affecting creditors'
rights and to general equity principles (regardless of whether the
enforcement is sought in a proceeding at law or in equity); and the
Indenture conforms, and the Securities will conform, to the descriptions
thereof contained in the Prospectus as amended or supplemented with
respect to such Securities;
(g) This Agreement has been duly authorized, executed and
delivered by the Company;
(h) The execution, delivery and performance of this Agreement,
the applicable Terms Agreement, the Indenture and the Securities by the
Company and the consummation of the transactions contemplated hereby and
thereby will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound or to which any
of the property or assets of the Company or any of its subsidiaries is
subject and which conflict, breach, violation or default would have a
material adverse effect on the financial condition, results of operations
or business of the Company and its subsidiaries taken as a whole, nor
will such actions result in any violation of the provisions of the
charter or by-laws of the Company or any of its subsidiaries or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets; and except for the
registration of the Securities under the Securities Act, the
qualification of the Indenture under the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as
may be required under the Exchange Act and applicable state securities
laws in connection with the purchase and distribution of the Securities
by the Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency or
body is required for the execution, delivery and performance of this
Agreement, the Indenture or the Securities by the Company and the
consummation of the transactions contemplated hereby and thereby;
(i) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included or incorporated by reference in the Prospectus present fairly
in all material respects the financial condition and results of
operations of the entities purported to be shown thereby, at the dates
and for the periods indicated, and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved except as disclosed therein;
(j) Other than as set forth or incorporated by reference in
the Registration Statement and the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property or assets of the
Company or any of its subsidiaries is the subject which, singularly or
in
- 5 -
6
the aggregate, are reasonably likely to have a material adverse effect
on the financial condition, results of operations or business of the
Company and its subsidiaries taken as a whole; and to the best of the
Company's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(k) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, which is material to
the Company and its subsidiaries, taken as a whole, otherwise than as
set forth or contemplated in the Prospectus; and since the respective
dates as of which information is given in the Prospectus, there has not
been any material change in the capital stock or long-term debt of the
Company or any of its subsidiaries (other than pursuant to employee
stock option and dividend reinvestment plans or the Company's common
stock repurchase program as set forth or contemplated in the Prospectus)
or any material adverse change, or any development which the Company has
reasonable cause to believe will involve a material adverse change, in
or affecting the management, financial position, stockholder's equity or
results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus; and
(l) The accountants who certified the financial statements and
supporting schedules included or incorporated by reference into the
Registration Statement and Prospectus are independent public accountants
as required by the Securities Act and the Securities Act Regulations.
Any certificate signed by any officer of the Company and
delivered to the Representatives or to counsel for the Underwriters
shall be deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby.
2. PURCHASE BY THE UNDERWRITERS. On the basis of the
representations, warranties and agreements contained herein, and subject to the
terms and conditions set forth herein, the Company agrees to issue and sell to
the Underwriters, and each of the Underwriters severally and not jointly,
agrees to purchase from the Company, at the price and/or principal amount, as
the case may be, set forth in the Terms Agreement attached hereto as Exhibit A,
together with interest thereon accrued from the date specified in the Terms
Agreement and in the respective amounts of the designated Securities set forth
opposite the name of each such Underwriter in Schedule I to Exhibit A to such
Terms Agreement.
The Company shall not be obligated to deliver any of the
Securities except upon payment for all the Securities to be purchased as
provided in the Terms Agreement.
3. DELIVERY OF AND PAYMENT FOR THE SECURITIES. Delivery of
and payment for the Securities shall be made at such place as shall be set
forth in the Terms Agreement, at 9:00 A.M., New York City time, on the third
business day (unless postponed in accordance with the provisions of Section 7)
following the date of the Terms Agreement or such other date or time, not later
than seven full business days thereafter, as shall be agreed
- 6 -
7
upon by the Representatives and the Company (such date and time being referred
to herein as the "Closing Time"). At the Closing Time, the Company shall
deliver or cause to be delivered to the Representatives for the account of each
Underwriter certificates for the Securities against payment to or upon the
order of the Company of the purchase price by certified or official bank check
or wire transfer in same-day funds unless otherwise specified in the Terms
Agreement. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligation
of each Underwriter hereunder. Upon delivery, the Securities shall be in
definitive fully registered form, in such denominations and registered in such
names as the Representatives shall have requested in writing not less than two
full business days prior to the Closing Time. The Company shall make the
certificates for the Securities available for inspection by the Representatives
in New York, New York, not later than one full business day prior to the
Closing Time.
4. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees
with each of the Underwriters:
(a) Immediately following the execution of the Terms
Agreement, the Company will prepare a Prospectus Supplement setting
forth the principal amount of Securities covered thereby and their terms
not otherwise specified in the Indenture, the names of the Underwriters
participating in the offering and the principal amount of Securities
which each severally has agreed to purchase, the price at which the
Securities are to be purchased by the Underwriters from the Company, the
initial public offering price, the selling concession and reallowance,
if any, any delayed delivery arrangements, and such other information as
the Underwriters and the Company deem appropriate in connection with the
offering of the Securities. The Company will promptly transmit copies
of the Prospectus Supplement to the Commission for proper filing in
accordance with Rule 424 of the Securities Act Regulations not later
than the close of business on the second business day following
execution of the Terms Agreement or, if applicable, such earlier date as
may be required by Rule 424(b) of the Securities Act Regulations and
will furnish to the Underwriters named therein as many copies of the
Prospectus and such Prospectus Supplement as the Underwriters shall
reasonably request;
(b) For so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities, (i) to advise
the Representatives promptly of any proposal to amend or supplement the
registration statement as filed or the related prospectus or the
Registration Statement or the Prospectus and not to effect such
amendment or supplementation to which the Underwriters reasonably
object, (ii) to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and (iii) to
advise the Representatives promptly of the receipt of any comments from
the Commission and of any amendment or supplementation of the
Registration Statement or the Prospectus, or of any request by the
Commission therefor; and to advise the Representatives promptly of (i)
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that
- 7 -
8
purpose or (ii) any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of the
qualification of such Securities for offering or sale in any
jurisdiction and of the initiation or threatening of any proceeding for
any such purpose; and to use best efforts to prevent the issuance of any
stop order or of any such order preventing or suspending the use of any
prospectus relating to the Securities or suspending any such
qualification and, if any such stop order or order or suspension is
issued, to obtain the lifting thereof at the earliest possible time;
(c) To furnish promptly to each of the Representatives and
counsel for the Underwriters a signed copy of the Registration Statement
as originally filed with the Commission, and, for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the Securities, (i) to furnish promptly to each of the
Representatives and counsel for the Underwriters each amendment thereto
filed with the Commission, including all consents and exhibits filed
therewith and (ii) to deliver promptly without charge to the
Representatives such number of the following documents as the
Representatives may from time to time reasonably request: (A) conformed
copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding exhibits
other than this Agreement, the Indenture, the computation of the ratio
of earnings to fixed charges and the computation of per share earnings);
(B) each preliminary prospectus, the Prospectus and any amended or
supplemented Prospectus; and (C) any document incorporated by reference
(or deemed to be incorporated by reference) in the Prospectus (excluding
exhibits thereto);
(d) If the delivery of a prospectus is required at any time in
connection with the sale of the Securities and if at such time any
condition exists or any event shall have occurred as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or if for any other reason it shall be
necessary, in your view or the view of counsel for the Company, at such
time to amend or supplement the Prospectus or to file under the Exchange
Act any document incorporated by reference in the Prospectus in order to
comply with the Securities Act or the Exchange Act, to notify the
Representatives immediately thereof, and to promptly prepare and file
with the Commission an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance, or to file such document for incorporation by reference into
the Prospectus;
(e) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the
Representatives, be required by the Securities Act or requested by the
Commission or advisable in connection with the distribution of the
Securities;
(f) Prior to filing with the Commission any (i) amendment to
the Registration Statement or supplement to the Prospectus or (ii) any
Prospectus pursuant
- 8 -
9
to Rule 424 of the Securities Act Regulations, to furnish a copy thereof
to the Representatives and counsel for the Underwriters, and not to file
any such document to which the Representatives shall reasonably object
after having been given reasonable notice of the proposed filing
thereof; and, during such time as a prospectus is required to be
delivered in connection with the offer or sale of the Securities, prior
to filing with the Commission any document incorporated by reference in
the Prospectus, to furnish a copy thereof to the Representatives and
counsel for the Underwriters;
(g) To make generally available to the Company's security
holders and to deliver to the Representatives an earning statement of
the Company and its subsidiaries (which need not be audited) complying
with Section 11(a) of the Securities Act and the Securities Act
Regulations (including, at the option of the Company, Rule 158);
(h) For so long as any of the Securities are outstanding, to
furnish to the Representatives copies of all materials furnished by the
Company to its shareholders and all public reports and all reports and
financial statements furnished by the Company to the Commission pursuant
to the Exchange Act or the Exchange Act Regulations;
(i) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may reasonably request and to comply with such laws so
as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Securities; provided, that in connection therewith
the Company shall not be required to qualify as a foreign corporation or
to file a general consent to service of process in any jurisdiction;
(j) During the period beginning from the date of the
applicable Terms Agreement and continuing to and including the Closing
Time, to not, directly or indirectly, offer for sale, sell, contract to
sell or otherwise dispose of, grant any option for the sale of or file a
registration statement for, or announce any offering of, any debt
securities of the Company with a maturity of more than 270 days (other
than the Securities) without the prior written consent of the
Representatives; and
(k) To apply the net proceeds from the sale of the Securities
being sold by the Company as set forth in the Prospectus.
5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective
obligations of the several Underwriters hereunder are subject to the accuracy,
when made and at the Closing Time, of the representations and warranties of the
Company contained herein, to the accuracy of the statements of the Company made
in any certificates pursuant to the provisions hereof, to the performance by
the Company of its obligations hereunder, and to each of the following
additional terms and conditions at the Closing Time:
(a) At the Closing Time, the Prospectus, as amended or
supplemented in relation to the applicable Securities, shall have been
timely filed with the Commission
- 9 -
10
in accordance with Section 4(a) of this Agreement and Rule 424(b) of the
Securities Act Regulations within the applicable time period prescribed
for such filing by the Securities Act and the Securities Act
Regulations. Prior to the Closing Time, no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus or otherwise shall have been complied with
to the reasonable satisfaction of the Representatives.
(b) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement (including the
applicable Terms Agreement), the Securities, the Indenture, the
Registration Statement and the Prospectus, and all other legal matters
relating to this Agreement and the transactions contemplated hereby
shall be reasonably satisfactory in all material respects to counsel for
the Underwriters, and the Company shall have furnished to such counsel
all documents and information that they may reasonably request to enable
them to pass upon such matters.
(c) Xxxxx X. Xxxxxx, Esq., General Counsel of the Company,
shall have furnished to the Representatives his written opinion
addressed to the Underwriters and dated as of the date of the Closing
Time, in form and substance reasonably satisfactory to the
Representatives, to the effect that:
(i) The Company and each significant subsidiary of the
Company within the meaning of Rule 1-02(w) of Regulation S-X of
the Securities Act Regulations (each hereinafter referred to as
a Subsidiary) is a corporation duly incorporated, validly
existing and in good standing under the laws of the jurisdiction
of its incorporation, is duly qualified to do business and is in
good standing as a foreign corporation in each jurisdiction in
which its ownership or lease of property or the conduct of its
business requires such qualification (except where the failure to
so qualify would not have, singularly or in the aggregate, a
material adverse effect on the financial condition, results of
operation or business of the Company and its subsidiaries taken
as a whole), and has the corporate power and authority to own or
hold its property and to carry on its businesses as now
conducted;
(ii) The Company has the authorized capitalization set
forth in the Prospectus, and all of the issued shares of capital
stock of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable, are not subject to
preemptive or similar rights and conform to the description
thereof contained in the Prospectus;
(iii) To the best of such counsel's knowledge, there are
no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Securities
Act Regulations and which have not been so described or filed;
- 10 -
11
(iv) The issuance and delivery by the Company of the
Securities, the execution, delivery and performance by the
Company of this Agreement, the Terms Agreement and the Indenture
and the consummation by the Company of the transactions herein
and therein contemplated will not conflict with or result in a
breach or violation of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan
agreement or similar agreement or instrument known to such
counsel to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound
or to which any of the property or assets of the Company or any
of its subsidiaries is subject and which would have a material
adverse effect on the financial condition, results or operations
or business of the Company and its subsidiaries taken as a whole,
nor will such actions result in any violation of the provisions
of the charter or by-laws of the Company or any of its
subsidiaries or any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or body
having jurisdiction over the Company or any of its Subsidiaries
or any of their respective properties or assets;
(v) Such counsel does not know of any contracts,
agreements or understandings between the Company and any person
granting such person the right to require the Company to include
securities owned or to be owned by such person in the securities
registered pursuant to the Registration Statement;
(vi) To the best of such counsel's knowledge and except
as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of which any property or assets of
the Company or any of its subsidiaries is subject which,
singularly or in the aggregate, are reasonably likely to have a
material adverse effect on the financial condition, results of
operations or business of the Company and its subsidiaries taken
as a whole; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by any governmental
authority or body or threatened by others.
Such opinion shall also include or be accompanied by a statement
to the effect that such counsel has participated in conferences with
representatives of the Company and with representatives of its
independent accountants and counsel at which conferences the contents of
the Registration Statement, the Prospectus and any amendment and
supplement thereto and related matters were discussed and, while such
counsel has not checked the accuracy or completeness of, or otherwise
verified, and is not passing upon, and assumes no responsibility for,
the accuracy or completeness of the information contained in or
incorporated by reference in the Registration Statement or the
Prospectus, or any amendment or supplement thereto, no facts have come
to the attention of such counsel that have caused him to believe (A)
that the Registration Statement or any amendment thereto (except for the
financial statements, the notes thereto and related schedules and other
financial and statistical data included or incorporated therein by
reference or any part of the Registration Statement which shall
constitute a Statement of Eligibility on Form T-1 under the Trust
Indenture Act, as to
- 11 -
12
which counsel need not express a belief), at the time the Registration
Statement or any amendment became effective, 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 (B) that the Prospectus or any amendment or
supplement thereto (except for the financial statements, the notes
thereto and related schedules and other financial and statistical data
included or incorporated therein by reference as to which counsel need
not express a belief), as of its date or as of the Closing Time,
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.
In giving such opinion, such counsel may state that he is a
member of the Bar of the State of Iowa and no opinion is expressed as to
any laws other than the laws of the State of Iowa, the General
Corporation Law of the State of Delaware and the Federal laws of the
United States and except that no opinion is expressed as to the
securities laws of any state. In rendering such opinion or statement,
such counsel may rely as to matters of fact upon certificates or
opinions of responsible officers or counsel of the Company and of public
officials.
(d) Debevoise & Xxxxxxxx shall have furnished to the
Representatives their written opinion, as special counsel to the
Company, addressed to the Underwriters and dated as of the date of the
Closing Time, in form and substance reasonably satisfactory to the
Representatives, to the effect that:
(i) The Registration Statement was declared effective
under the Securities Act and the Indenture was qualified under
the Trust Indenture Act as of the date and time specified in such
opinion; if applicable, the Prospectus was filed with the
Commission pursuant to the subparagraph of Rule 424(b) of the
Securities Act Regulations specified in such opinion on the date
specified therein; and no stop order suspending the effectiveness
of such Registration Statement has been issued and, to the best
knowledge of such counsel, no proceedings for that purpose have
been instituted or threatened by the Commission;
(ii) As of its date and at the Closing Time, each
Registration Statement and Prospectus and any further amendments
or supplements to any Registration Statement or Prospectus made
prior to the Closing Time (except for the financial statements,
the notes thereto and related schedules and other financial and
statistical data included or incorporated therein by reference or
any part of the Registration Statement which shall constitute a
Statement of Eligibility on Form T-1 under the Trust Indenture
Act, as to which counsel need not express an opinion) comply as
to form in all material respects with the requirements of the
Securities Act and the Securities Act Regulations; and each
document filed pursuant to the Exchange Act and incorporated by
reference in such Prospectus (except for the financial
statements, the notes thereto and related schedules and other
financial and statistical data included or incorporated therein by
- 12 -
13
reference, as to which counsel need not express an opinion), as
of its respective filing date, complied as to form in all
material respects with the requirements of the Exchange Act and
the Exchange Act Regulations;
(iii) The Indenture complies as to form in all material
respects with the requirements of the Trust Indenture Act and the
Trust Indenture Act Regulations;
(iv) The Company has the corporate power and authority
to execute and deliver this Agreement, the Terms Agreement, the
Indenture and the Securities and to perform its obligations
hereunder and thereunder; and all corporate action required to be
taken by the Company for the due and proper authorization,
execution, delivery and performance of this Agreement, the Terms
Agreement, the Indenture and the Securities and the consummation
of the transactions contemplated by such documents has been duly
and validly taken;
(v) This Agreement has been duly authorized, executed
and delivered by the Company;
(vi) The Terms Agreement has been duly authorized,
executed and delivered by the Company;
(vii) The Indenture has been duly authorized, executed
and delivered by the Company and constitutes the valid and
binding obligation of the Company enforceable against the Company
in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws of general applicability relating to or affecting
the rights of creditors and to general equitable principles
(whether considered in a proceeding at law or in equity); the
Securities are in the form contemplated by the Indenture in all
material respects and have been duly authorized and executed by
the Company and, upon the due authentication and delivery thereof
by the Trustee against payment therefor in accordance with the
provisions of the Indenture and this Agreement, the Securities
will constitute valid and binding obligations of the Company,
entitled to the benefits of the Indenture and enforceable against
the Company in accordance with their terms, except as may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws of general applicability relating to
or affecting the rights of creditors and to general equitable
principles (whether considered in a proceeding at law or in
equity); and the Securities and the Indenture conform in all
material respects to the descriptions thereof contained in the
Prospectus;
(viii) The issuance and delivery by the Company of the
Securities, the execution, delivery and performance by the
Company of this Agreement, the Terms Agreement and the Indenture
and the consummation by the Company of the transactions herein
and therein contemplated will not (A) violate any provision of
the Restated Certificate of Incorporation or By-laws of the
- 13 -
14
Company or (B) contravene any statute, rule or regulation known
to such counsel;
(ix) Except for the registration of the Securities under
the Securities Act, the qualification of the Indenture under the
Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the
Exchange Act and applicable state securities laws or those
obtained prior to the date of the opinion as set forth in the
opinion in connection with the purchase and distribution of the
Securities by the Underwriters, no consent, approval,
authorization or order of, or any filing or registration with,
any governmental agency or body is required for the
valid authorization, issuance and delivery of the Securities by
the Company, the execution, delivery and performance by the
Company of this Agreement, the Terms Agreement or the Indenture
and the consummation by the Company of the transactions herein
and therein contemplated;
Such opinion shall also include or be accompanied by a statement
to the effect that such counsel has participated in conferences with
representatives of the Company and with representatives of its
independent accountants and counsel at which conferences the contents of
the Registration Statement of the Prospectus and any amendment and
supplement thereto and related matters were discussed and, while such
counsel have not checked the accuracy or completeness of, or otherwise
verified, and are not passing upon, and assume no responsibility for,
the accuracy or completeness of the information contained in or
incorporated by reference in the Registration Statement or the
Prospectus, or any amendment or supplement thereto (except to the
limited extent stated in paragraph (vii) above), no facts have come to
the attention of such counsel that have caused them to believe (A) that
the Registration Statement or any amendment thereto (except for the
financial statements, the notes thereto and related schedules and other
financial and statistical data included or incorporated therein by
reference or any part of the Registration Statement which shall
constitute a Statement of Eligibility on Form T-1 under the Trust
Indenture Act, as to which counsel need not express a belief), at the
time the Registration Statement or any amendment became effective,
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 (B) that the Prospectus or any
amendment or supplement thereto (except for the financial statements,
the notes thereto and related schedules and other financial and
statistical data included or incorporated therein by reference, as to
which counsel need not express a belief), as of its date or as of the
Closing Time, 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.
In giving such opinion, such counsel may state that such opinion
is limited to the laws of the State of New York, the General Corporation
Law of the State of Delaware and the Federal laws of the United States
(other than laws with respect to federal energy regulation), except that
such counsel expresses no opinion as to the securities laws of any
state. In rendering such opinion or statement, such counsel may
- 14 -
15
rely as to matters of fact upon certificates or opinions of responsible
officers or counsel of the Company and of public officials.
(e) The Representatives shall have received from Fried, Frank,
Harris, Xxxxxxx & Xxxxxxxx, counsel for the Underwriters, such opinion
or opinions, dated the date of the Closing Time, with respect to such
matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for
enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a
letter (the "Initial Letter") of Deloitte & Touche LLP, addressed to the
Representatives and dated the date of the applicable Terms Agreement, in
form and substance reasonably satisfactory to the Representatives,
substantially to the effect set forth in Annex A hereto.
(g) The Company shall have furnished to the Representatives a
letter (as used in this paragraph, the "Bring-Down Letter") of Deloitte
& Touche LLP, dated as of the Closing Time in form and substance
reasonably satisfactory to the Representatives and addressed to the
Underwriters (i) confirming that they are independent public accountants
with respect to the Company and its subsidiaries within the meaning of
Rule 101 of the Code of Professional Conduct of the AICPA and its
interpretations and rulings and are in compliance with the applicable
requirements relating to the qualification of accountants in Rule 2-01
of Regulation S-X of the Securities Act Regulations, (ii) stating, as of
the date of the Bring-Down Letter that (or, with respect to matters
involving changes or developments since the respective dates as of which
specified financial information is given in the Prospectus, as of a date
not more than five days prior to the date of the Bring-Down Letter),
that the conclusions and findings of such firm with respect to the
financial information and other matters covered by the Initial Letter
are accurate, (iii) confirming in all material respects the conclusions
and findings set forth in the Initial Letter and (iv) confirming they
have performed certain procedures with respect to certain amounts,
percentages and financial information specified by the Representatives
and have found such amounts, percentages and financial information to be
in agreement with the records of the Company.
(h) The Company shall have furnished to the Representatives a
certificate, dated as of the Closing Time, of its Chairman of the Board,
its President or an Executive Vice President and its chief financial
officer stating that (i) such officers have carefully examined the
Registration Statement, the Prospectus, this Agreement and the Terms
Agreement, (ii) in their opinion, as of the Closing Time, (A) the
Registration Statement, including the documents incorporated therein by
reference, does not include any untrue statement of a material fact and
did not omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (B) the
Prospectus, including the documents incorporated therein by reference,
does not include any untrue statement of a material fact and did not
omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and since the Effective Time, no
event has occurred which should have been set forth in a supplement or
- 15 -
16
amendment to the Registration Statement or the Prospectus and which has
not been so set forth and (iii) to the best of his or her knowledge
after reasonable investigation, as of the Closing Time, the
representations and warranties of the Company in this Agreement are true
and correct, the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Time, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the best of his or her knowledge,
are contemplated by the Commission, and subsequent to the date of the
most recent financial statements in the Prospectus, there has been no
material adverse change in the financial position or results of
operation of the Company and its subsidiaries taken as a whole, or any
change, or any development including a prospective change, in or
affecting the financial condition, results of operations or business of
the Company and its subsidiaries taken as a whole, except as set forth
in the Prospectus.
(i) Since the respective dates as of which information is
given in the Registration Statement (exclusive of any amendment thereof)
and the Prospectus (exclusive of any supplement thereto), there shall
not have been any change (other than pursuant to employee stock option
and dividend re-investment plans or the Company's common stock
repurchase plan, as set forth or contemplated in the Prospectus) in the
capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective
change, in or affecting the financial condition, results of operations
or business of the Company and its subsidiaries taken as a whole, the
effect of which, in any such case described above, is, in the judgment
of the Representatives, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated
in the Prospectus (as amended or supplemented).
(j) Subsequent to the execution and delivery of the applicable
Terms Agreement, (i) no downgrading shall have occurred in the rating
accorded the Securities or any of the Company's other debt securities by
any "nationally recognized statistical rating organization," as that
term is defined by the Commission for purposes of Rule 436(g)(2) of the
Securities Act Regulations and (ii) no such organization shall have
publicly announced that it has under surveillance or review (other than
an announcement with positive implications of a possible upgrading), its
rating of the Securities or any of the Company's other debt securities.
(k) Subsequent to the execution and delivery of the applicable
Terms Agreement, there shall not have occurred any of the following: (i)
trading in securities generally on the New York Stock Exchange, the
American Stock Exchange or the over-the-counter market shall have been
suspended or limited, or minimum prices shall have been established on
either of such exchanges or such market by the Commission, by such
exchanges or market or by any other regulatory body or governmental
authority having jurisdiction, or trading in securities of the Company
on any exchange or in the over-the-counter market shall have been
suspended or (ii) a general moratorium on commercial banking activities
shall have been declared by Federal or New York State
- 16 -
17
or Oklahoma State authorities or (iii) an outbreak or escalation of
hostilities or a declaration by the United States of a national
emergency or war or such a material adverse change in general economic,
political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be such)
as to make it, in the judgment of the Representatives, impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the
Prospectus.
All opinions, letters, evidence and certificates mentioned above
or elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriters.
6. TERMINATION. The obligations of the Underwriters hereunder may
be terminated by the Representatives, in their absolute discretion, by notice
given to and received by the Company prior to delivery of and payment for the
Securities if, prior to that time, any of the events described in Sections
5(i), 5(j) or 5(k) shall have occurred.
7. DEFAULTING UNDERWRITERS. (a) If, at the Closing Time, any
Underwriter or Underwriters default in the performance of its or their
obligations under the applicable Terms Agreement, the Representatives may make
arrangements for the purchase of such Securities by other persons satisfactory
to the Company and the Representatives, including any of the Underwriters, but
if no such arrangements are made by the Closing Time, then each remaining non-
defaulting Underwriter shall be severally obligated to purchase the Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase
at the Closing Time in the respective proportions which the principal amount of
Securities set forth opposite the name of each remaining non-defaulting
Underwriter in Schedule I of the applicable Terms Agreement bears to the
aggregate principal amount of Securities set forth opposite the names of all
the remaining non-defaulting Underwriters in Schedule I of the applicable Terms
Agreement; provided, however, that the remaining non-defaulting Underwriters
shall not be obligated to purchase any of the Securities at the Closing Time if
the aggregate principal amount of Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase on such date exceeds one-tenth of
the aggregate principal amount of the Securities to be purchased at the Closing
Time, and any remaining non-defaulting Underwriter shall not be obligated to
purchase in total more than 110% of the principal amount of the Securities
which it agreed to purchase at the Closing Time pursuant to the terms of
Section 2. If the foregoing maximums are exceeded and the remaining
Underwriters or other underwriters satisfactory to the Representatives and the
Company do not elect to purchase, within 36 hours after such default, the
Securities which the defaulting Underwriter or Underwriters agreed but failed
to purchase, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Company, except that the Company will
continue to be liable for the payment of expenses to the extent set forth in
Sections 8 and 12 and except that the provisions of Sections 9 and 10 shall not
terminate and shall remain in effect. As used in this Agreement, the term
"Underwriter" includes, for all purposes of this Agreement unless the context
otherwise requires, any party not listed in Schedule I of the applicable Terms
Agreement who, pursuant to this Section 7, purchases Securities which a
defaulting Underwriter agreed but failed to purchase.
- 17 -
18
(b) Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have for damages caused by its default. If
other Underwriters are obligated or agree to purchase the Securities of a
defaulting Underwriter, either the Representatives or the Company may postpone
the Closing Time for up to seven full business days in order to effect any
changes that in the opinion of counsel for the Company or counsel for the
Underwriters may be necessary in the Registration Statement, the Prospectus or
in any other document or arrangement, and the Company agrees to file promptly
any amendment or supplement to the Registration Statement or the Prospectus
that effects any such changes.
8. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If (a) the
Company shall fail to tender the Securities for delivery to the Underwriters
for any reason permitted under this Agreement or (b) the Underwriters shall
decline to purchase the Securities for any reason permitted under this
Agreement (including the termination of this Agreement pursuant to Section 6),
and the Terms Agreement, the Company shall reimburse the Underwriters for the
fees and expenses of their counsel and for such other out-of-pocket expenses as
shall have been reasonably incurred by them in connection with this Agreement
and the Terms Agreement and the proposed purchase of the Securities, and upon
demand the Company shall pay the full amount thereof to the Representatives.
If this Agreement is terminated pursuant to Section 7 by reason of the default
of one or more Underwriters, the Company shall not be obligated to reimburse
the Underwriters on account of those expenses.
9. INDEMNIFICATION. (a) The Company shall indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of the Securities Act or the Exchange Act
(collectively referred to for purposes of this Section 9(a) and Section 10 as
an Underwriter), from and against any loss, claim, damage or liability, joint
or several, or any action in respect thereof (including, without limitation,
any loss, claim, damage, liability or action relating to purchases and sales of
the Securities), to which that Underwriter may become subject, whether
commenced or threatened, under the Securities Act, the Exchange Act, any other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement as originally filed or in any
amendment or supplement thereto or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to
make the statements therein not misleading, or (ii) any untrue statement or
alleged untrue statement of material fact contained in any preliminary
prospectus, any preliminary prospectus supplement or the Prospectus (or
amendment or supplement thereto) or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading, and shall
reimburse each Underwriter promptly upon demand for any legal or other expenses
reasonably incurred by that Underwriter in connection with investigating or
defending or preparing to defend against or appearing as a third party witness
in connection with any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any preliminary prospectus,
preliminary prospectus supplement, Registration Statement (as originally filed
or in any amendment or
- 18 -
19
supplement thereto) or the Prospectus (as originally filed or in any amendment
or supplement thereto) in reliance upon and in conformity with any
Underwriters' Information; and provided, further, that with respect to any such
untrue statement or alleged untrue statement in or omission or alleged
omission from the preliminary prospectus or preliminary prospectus supplement,
the indemnity agreement contained in this Section 9(a) shall not inure to the
benefit of any Underwriter to the extent that the sale to the person asserting
any such loss, claim, damage, liability or action was a sale by such
Underwriter and any such loss, claim, damage, liability or action of or with
respect to such Underwriter results from the fact that both (A) to the extent
required by applicable law, a copy of the Prospectus (as amended or
supplemented) was not sent or given to such person at or prior to the written
confirmation of the sale of such Securities to such person (if the Company has
previously furnished copies thereof sufficiently in advance of the Closing Time
to allow for distribution of the Prospectus in a timely manner) and (B) the
untrue statement or alleged untrue statement in or omission or alleged omission
from the preliminary prospectus or preliminary prospectus supplement was
corrected in the Prospectus (as amended or supplemented) unless, in either
case, such failure to deliver the Prospectus (as amended or supplemented) was a
result of non-compliance by the Company with Section 4(c).
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, its directors, each officer of the
Company who signed the Registration Statement and each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act (collectively referred to for purposes of this Section 9(b) and Section 10
as the Company), from and against any loss, claim, damage or liability, joint
or several, or any action in respect thereof, to which the Company may become
subject, whether commenced or threatened, under the Securities Act, the
Exchange Act, any other federal or state statutory law or regulation, at common
law or otherwise, insofar as such loss, claim, damage, liability or action
arises out of or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (as
originally filed or in any amendment or supplement thereto) or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein not misleading, or (ii)
any untrue statement or alleged untrue statements of material fact contained in
any preliminary prospectus, any preliminary prospectus supplement or the
Prospectus (as originally filed or in 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 light of the circumstances under which
they were made, not misleading, but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to the Company by or on behalf of such Underwriter expressly for use therein,
and shall reimburse the Company promptly upon demand for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending or preparing to defend against or appearing as a third party witness
in connection with any such loss, claim, damage, liability or action as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party pursuant to Section 9(a) or 9(b), notify the
indemnifying party in writing of the claim or the commencement of that action;
provided, however, that the failure to notify the indemnifying party shall not
relieve it
- 19 -
20
from any liability which it may have under this Section 9 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and, provided, further, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 9. If any
such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that an
indemnified party shall have the right to employ its own counsel in any such
action (in which case, if such indemnified party is indemnified pursuant to
Section 9(a) above, counsel to the indemnified party shall be selected by the
Representatives and if such indemnified party is indemnified pursuant to Section
9(b) above, counsel to the indemnified party shall be selected by the Company),
but the fees and expenses of such separate counsel shall be paid by such
indemnified party unless (i) the employment of counsel by the indemnified party
and the payment of fees and expenses by the indemnifying party has been
authorized in writing by the indemnifying party, (ii) the indemnified party has
reasonably concluded (based on advice of counsel for the indemnified party) that
there may be legal defenses available to it or other indemnified parties that
are different from or in addition to those available to the indemnifying party,
(iii) a conflict or potential conflict exists (based on advice of counsel for
the indemnified party) between the indemnified party and the indemnifying party,
or (iv) the indemnifying party has not in fact employed counsel to assume the
defense of such action within a reasonable time after receiving notice of the
election of the indemnifying party to assume the defense of the action, in each
of which cases the indemnifying party will not have the right to direct the
defense of such action on behalf of the indemnified party and the reasonable
fees and expenses of counsel will be at the expense of the indemnifying party or
parties. It is understood that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees, disbursements and other charges of more than
one separate firm of attorneys (in addition to any local counsel) at any one
time for all such indemnified party or parties. Each indemnified party, as a
condition of the indemnity agreements contained in Sections 9(a) and 9(b), shall
use all reasonable efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall be liable for
any settlement of any such action effected without its written consent, but if
settled with its written consent or if there is a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party agrees to indemnify and hold harmless any
indemnified party from and against any loss, claim, damage or liability by
reason of such settlement or judgment. No indemnifying party shall, without the
prior written consent of the indemnified party, which shall not be unreasonably
withheld, effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could reasonably have been a party
and indemnity could have been sought hereunder by such indemnified party unless
such settlement (i) includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such proceeding
- 20 -
21
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.
The obligations of the Company and the Underwriters in this
Section 9 and in Section 10 are in addition to any other liability that the
Company or the Underwriters, as the case may be, may otherwise have, including
in respect of any breaches of representations, warranties and agreements made
herein by any such party.
10. CONTRIBUTION. If the indemnification provided for in
Section 9 is unavailable or insufficient to hold harmless an indemnified party
under Section 9(a) or 9(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable
by such indemnified party as a result of such loss, claim, damage or liability,
or action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Securities, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Underwriters on the other with respect to the statements
or omissions that resulted in such loss, claim, damage or liability, or action
in respect thereof, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other with respect to such offering shall be deemed to be
in the same proportion as the total net proceeds from the offering of the
Securities purchased under the applicable Terms Agreement (before deducting
expenses) received by or on behalf of the Company, on the one hand, and the
total discounts and commissions received by the Underwriters with respect to
the Securities purchased under the applicable Terms Agreement, on the other,
bear to the total gross proceeds from the sale of the Securities under the
applicable Terms Agreement, in each case as set forth in the table in the
Prospectus Supplement. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to the Company or information supplied by the Company on the one hand
or to any Underwriters' Information on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this Section 10 were to be
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not
take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this Section
10 shall be deemed to include, for purposes of this Section 10, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending or preparing to defend any such action or claim.
Notwithstanding the provisions of this Section 10, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
discounts and commissions received by such Underwriter with respect to the
Securities purchased by it under the applicable Terms Agreement exceeds the
amount of any damages which such Underwriter has otherwise paid or become
liable to pay by reason of any untrue or
- 21 -
22
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute as provided in this Section 10 are several in proportion to their
respective underwriting obligations and not joint.
11. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement
shall inure to the benefit of and be binding upon the Underwriters, the
Company, and their respective successors. Nothing expressed or mentioned in
this 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 9 and 10 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein. No purchaser of the Securities from any
Underwriter shall be deemed a successor by reason merely of such purchase.
12. EXPENSES. The Company agrees with the Underwriters to pay
(a) the costs incident to the authorization, issuance, sale, preparation and
delivery of the Securities and any taxes payable in that connection; (b) the
costs incident to the preparation, printing and filing under the Securities Act
of the Registration Statement and the Prospectus and any amendments and
exhibits thereto; (c) the costs of distributing the Registration Statement as
originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), any preliminary prospectus, the
Prospectus and any amendment or supplement to the Prospectus, all as provided
in this Agreement; (d) the costs of printing, reproducing and distributing this
Agreement and any other underwriting and selling group documents by mail, telex
or other means of communications; (e) the filing fees incident to securing any
required review by the National Association of Securities Dealers, Inc. of the
terms of sale of the Securities; (f) any applicable listing or other fees, if
any; (g) the fees and expenses of qualifying the Securities under the
securities laws of the several jurisdictions as provided in Section 4(i) and of
preparing, printing and distributing Blue Sky Memoranda and Legal Investment
Surveys (including related fees and expenses of counsel for the Underwriters);
(h) fees charged by securities rating services for rating the Securities, if
any; (i) all fees and expenses of the Trustee; and (j) all other costs and
expenses incident to the performance of the obligations of the Company under
this Agreement; provided, that except as otherwise provided in this Section 12
and in Section 8, the Underwriters shall pay their own costs and expenses,
including the costs and expenses of their counsel, any transfer taxes on the
Securities which they may sell and the expenses of advertising any offering of
the Securities made by the Underwriters.
13. SURVIVAL. The respective indemnities, rights of
contribution, representations, warranties and agreements of the Company and the
Underwriters contained in this Agreement and the applicable Terms Agreement or
made by or on behalf on them, respectively, pursuant to this Agreement and the
applicable Terms Agreement, shall survive the delivery of and payment for the
Securities under the applicable Terms Agreement and shall remain in full force
and effect, regardless of any termination or cancellation of this Agreement or
any investigation made by or on behalf of any of them or any person controlling
any of them.
- 22 -
23
14. NOTICES, ETC. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) notices to the Underwriters shall be directed to the
Underwriters at the address indicated in the applicable Terms Agreement;
and
(b) notices to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth
in the Registration Statement, Attention: Senior Vice President,
General Counsel and Secretary.
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof. The Company shall be entitled to act and rely upon
any request, consent, notice or agreement given or made on behalf of the
Underwriters by the Representatives.
15. DEFINITIONS OF CERTAIN TERMS. For purposes of this
Agreement, (a) "business day" means any day on which the New York Stock
Exchange, Inc. is open for trading and (b) "subsidiary" has the meaning set
forth in Rule 405 of the Securities Act Regulations.
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
17. COUNTERPARTS. Each Terms Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but
all such counterparts shall together constitute one and the same instrument.
18. HEADINGS. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
- 23 -
24
If the foregoing is in accordance with your understanding of the
agreement between the Company and the several Underwriters, kindly indicate
your acceptance in the space provided for that purpose below.
Very truly yours,
MAPCO INC.
By
---------------------------------
Name:
Title:
- 24 -
25
ANNEX A
[Form of Initial Comfort Letter]
The Company shall have furnished to the Representatives a letter
of Deloitte & Touche LLP, addressed to the Representatives and dated the date
of the Terms Agreement, in form and substance satisfactory to the
Representatives, substantially to the effect set forth below:
(i) they are independent certified public accountants
with respect to the Company within the meaning of Rule 101 of the Code
of Professional Conduct of the AICPA and its interpretations and
rulings;
(ii) in their opinion, the audited financial statements
[and pro forma financial information] included in the Registration
Statement and the Prospectus (each as amended or supplemented) or the
documents incorporated by reference therein and reported on by them
comply in form in all material respects with the accounting requirements
of the Exchange Act and the related published rules and regulations of
the Commission thereunder;
(iii) based upon a reading of the latest unaudited
financial statements made available by the Company, the procedures of
the AICPA for a review of interim financial information as described in
Statement of Auditing Standards No. 71, reading of minutes and inquiries
of certain officials of the Company who have responsibility for
financial and accounting matters and certain other limited procedures
requested by the Representatives and described in detail in such letter,
nothing has come to their attention that causes them to believe that (A)
any unaudited financial statements included in the Registration
Statement and the Prospectus (each as amended or supplemented) or the
documents incorporated by reference therein do not comply as to form in
all material respects with applicable accounting requirements, (B) any
material modifications should be made to the unaudited financial
statements included in the Registration Statement and the Prospectus
(each as amended or supplemented) or the documents incorporated by
reference therein for them to be in conformity with generally accepted
accounting principles applied on a basis substantially consistent with
that of the audited financial statements included in the Registration
Statement and the Prospectus (each as amended or supplemented) or the
documents incorporated by reference therein or (C) the information
included under the headings ["Summary--Summary Financial Data",
"Selected Financial Data", "Ratio of Earnings to Fixed Charges" and
"Management--Executive Compensation"] is not in conformity with the
disclosure requirements of Regulation S-K;
(iv) based upon the procedures detailed in such letter
with respect to the period subsequent to the date of the last available
balance sheet, including reading of minutes and inquires of certain
officials of the Company who have responsibility for financial and
accounting matters, nothing has come to their attention that causes them
to believe that (A) at a specified date not more than five business
days prior to the date of such letter, there was any change in capital
stock, increase in long-term debt or decrease in net current assets as
compared with the amounts shown in the _________ ___, 199__ unaudited
balance sheet included in the Registration Statement and the Prospectus
(each as amended or supplemented) or the documents incorporated by
26
reference therein or (B) for the period from ______ __, 199__ to a
specified date not more than five business days prior to the date of
such letter, there were any decreases, as compared with the
corresponding period in the preceding year, in net sales, income from
operations, or net income, except in all instances for changes,
increases or decreases that the Registration Statement and the
Prospectus (each as amended or supplemented) or the documents
incorporated by reference therein discloses have occurred or may occur
or which are set forth in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the significance
thereof unless said explanation is deemed unnecessary by the
Representatives;
(v) they have performed certain other specified
procedures as a result of which they determined that certain information
of an accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company) set forth in the Registration
Statement and the Prospectus (each as amended or supplemented) or the
documents incorporated by reference therein agrees with the accounting
records of the Company, excluding any questions of legal interpretation
[; and] [.]
[(vi) on the basis of a reading of the unaudited pro
forma financial information included in the Registration Statement and
the Prospectus (each as amended or supplemented) or the documents
incorporated by reference therein, carrying out certain specified
procedures, reading of minutes and inquiries of certain officials of the
Company who have responsibility for financial and accounting matters and
proving the arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in the pro forma financial
information, nothing came to their attention which caused them to
believe that the pro forma financial information does not comply in form
in all material respects with the applicable accounting requirements of
Rule 11-02 of Regulation S-X or that the pro forma adjustments have not
been properly applied to the historical amounts in the compilation of
such information.]
-2-
27
EXHIBIT A
Terms Agreement
[Names and addresses of Representatives]
_____________________, 19__
Ladies and Gentlemen:
MAPCO Inc., a Delaware corporation (the "Company"), proposes, subject to
the terms and conditions stated herein and in the Underwriting Agreement, dated
_________, 19__ (the "Underwriting Agreement"), to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities"). Each of the
provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Terms Agreement, except that each
representation and warranty which refers to the Prospectus in Section 1 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as
therein defined), and also a representation and warranty as of the date of this
Terms Agreement in relation to the Prospectus as amended or supplemented
relating to the Designated Securities which are the subject of this Terms
Agreement. Each reference to the Representatives herein and in the provisions
of the Underwriting Agreement so incorporated by reference shall be deemed to
refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time
and place set forth in Schedule II hereto, the number or aggregate principal
amount of Designated Securities set forth opposite the name of such Underwriter
in Schedule I hereto. The price and other material terms of the Designated
Securities are set forth on Schedule II hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us one for the Company and one for each of the Representatives plus
one for each counsel counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters,
28
this letter and such acceptance hereof, including the provisions of the
Underwriting Agreement incorporated herein by reference, shall constitute a
binding agreement between each of the Underwriters and the Company. It is
understood that your acceptance of this letter on behalf of each of the
Underwriters is or will be pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company for examination, upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
MAPCO INC.
By:
-------------------
Name:
Title:
Accepted as of the date hereof:
Name(s) of Representative(s)
By:
------------------------
[ ]
On behalf of each of the
Underwriters
29
SCHEDULE I
Number of
Aggregate Principal
Amount of
Designated Securities
Underwriters to be Purchased
------------ ---------------------
Name(s) of Representative(s)...................
Names of other Underwriters....................
-------
Total..........................
=======
30
SCHEDULE II
Underwriting Agreement Dated ____________, _____
Registration Statement No. 333-20837[and 333-_______]
Title, Purchase Price and Description of Designated Securities:
Title:
Number or Aggregate Principal Amount:
Price to Public:
Purchase Price by Underwriters (include accrued interest or amortization,
if any):
Sinking Fund Provisions:
Redemption Provisions:
Other Provisions:
Applicable Securities Agreement:
Maturity:
Interest Rate:
Interest Payment Dates:
Time of Delivery and Location:
Names and Addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
Underwriters:
Other Terms:
[The Underwriters will pay for the Designated Securities upon delivery thereof
at the offices of ___________________ at 9:00 A.M. (New York City time) on
___________, 199__, or at such other time, not later than __.M. (New York City
time) on ____________, 199__, as will be jointly designated by the
Representatives and the Company.]
