EXHIBIT 1.1
40,000,000 FELINE PACS(sm)
(Initially Consisting of 40,000,000 Income PACS(sm))
The Xxxxxxxx Companies, Inc.
UNDERWRITING AGREEMENT
January 7, 2002
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx Barney Inc.
c/o MERRILL LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
4 World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
The Xxxxxxxx Companies, Inc., a Delaware corporation (the
"Company"), proposes to sell 40,000,000 FELINE PACS (the "Firm Securities")
of the Company to the several Underwriters (the "Underwriters") named in
Schedule 1 hereto, subject to the conditions hereinafter stated. Each
FELINE PACS initially will consist of a unit (referred to as "Income PACS")
with a stated amount of $25 (the "Stated Amount") comprised of (a) a stock
purchase contract (the "Purchase Contract") under which (i) the holder will
agree to purchase from the Company on February 16, 2005 (the "Purchase
Contract Settlement Date"), a number of shares of common stock, par value
$1.00 per share (the "Common Stock"), of the Company equal to the
Settlement Rate (as defined in the Purchase Contract Agreement referred to
below) and (ii) the Company will pay to the holder thereof contract
adjustment payments of 2.50% of the Stated Amount, and (b) a 6.50% Note due
2007 (the "Notes"), in a principal amount of $25. Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated and Xxxxxxx Xxxxx Barney Inc. shall act as
representatives (the "Representatives") of the several Underwriters.
(SM) Service xxxx of Xxxxxxx Xxxxx & Co., Inc.
In addition, the Company proposes to grant to the Underwriters an
option to purchase up to an additional 6,000,000 FELINE PACS on the terms
and for the purposes set forth in Section 3 (the "Option Securities"). The
Firm Securities and the Option Securities, if purchased, are hereinafter
collectively called the "Securities." This is to confirm the agreement
concerning the purchase of the Securities from the Company by the
Underwriters.
Capitalized terms used herein without definition shall be used as
defined in the Prospectus (as defined below).
In accordance with the terms of the Purchase Contract Agreement,
to be dated as of January 14, 2002 (the "Purchase Contract Agreement"),
between the Company and XX Xxxxxx Xxxxx Bank, as purchase contract agent
(the "Purchase Contract Agent"), the Notes constituting a part of the
Securities will be pledged by the Purchase Contract Agent, on behalf of the
holders of the Income PACS, to XX Xxxxxx Chase Bank, as collateral agent
(the "Collateral Agent"), pursuant to the Pledge Agreement, to be dated as
of January 14, 2002 (the "Pledge Agreement"), among the Company, the
Purchase Contract Agent and the Collateral Agent, to secure the holders'
obligations to purchase Common Stock under the Purchase Contracts. The
shares of Common Stock issuable pursuant to the Purchase Contracts are
hereinafter called the "Shares." The rights and obligations of a holder of
Securities in respect of Notes, subject to the pledge thereof, and Purchase
Contracts will be evidenced by Security Certificates (the "Security
Certificates") to be issued pursuant to the Purchase Contract Agreement.
The Notes will be issued pursuant to the Senior Indenture, dated
as of November 10, 1997, between the Company and Bank One Trust Company,
National Association, as trustee (the "Trustee") and a Sixth Supplemental
Indenture thereto to be dated as of January 14, 2002 (the "Supplemental
Indenture"; such Indenture as amended and supplemented to the date hereof
and as further amended and supplemented by the Supplemental Indenture is
herein referred to as the "Indenture").
Pursuant to a Remarketing Agreement (the "Remarketing Agreement")
to be dated as of January 14, 2002, between the Company, the Purchase
Contract Agent and Xxxxxxx Xxxxx, certain Notes may be remarketed, subject
to the terms and conditions set forth in the Remarketing Agreement.
As used in this Agreement, the term "Operative Documents" means
this Agreement, the Purchase Contract Agreement (including the Purchase
Contracts), the Pledge Agreement, the Remarketing Agreement, the Senior
Notes and the Indenture.
SECTION 1. Representations, Warranties and Agreements of the
Company. The Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 with respect to debt
securities, preferred and common stock of the Company, warrants, purchase
contracts and units (collectively, the "Shelf Securities"), including the
Securities, has (i) been prepared by the Company in conformity in all
material respects with the requirements of the Securities Act of 1933, as
amended (the "Securities Act"), and the rules and regulations (the "Rules
and Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder, (ii) been filed with the Commission under the
Securities Act and (iii) become effective under the Securities Act. The
registration statement includes a prospectus relating to the Shelf
Securities. In addition, the Company has filed, or will file within the
applicable time period set forth in the Rules and Regulations, with the
Commission, a prospectus supplement specifically relating to the Securities
pursuant to Rule 424 of the Rules and Regulations. The term "Registration
Statement" means the registration statement as amended to the date of this
Agreement. The term "Basic Prospectus" means the prospectus included in the
Registration Statement. The term "Prospectus" means the Basic Prospectus
together with the prospectus supplement (other than a preliminary
prospectus supplement) specifically relating to the Securities, in the form
first used to confirm sales of the Securities. The term "Preliminary
Prospectus" means a preliminary prospectus supplement specifically relating
to the Securities, together with the Basic Prospectus. As used herein, the
terms "Registration Statement", "Basic Prospectus", "Prospectus" and
"Preliminary Prospectus" shall include, in each case, the material, if any,
incorporated by reference therein; "Effective Time" means the date and time
as of which the Registration Statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission;
"Effective Date" means the date of the Effective Time; and the terms
"supplement", "amend" and "amendment", as used in this Agreement with
respect to the Registration Statement or the Prospectus, shall include all
documents subsequently filed by the Company with the Commission pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), that
are deemed to be incorporated by reference in the Prospectus. If the
Company has filed an abbreviated registration statement to register
additional Securities pursuant to Rule 462(b) under the Securities Act (the
"Rule 462 Registration Statement"), then any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462
Registration Statement. To the best of the Company's knowledge, the
Commission has not issued any order preventing or suspending the use of any
Preliminary Prospectus.
(b) The Registration Statement conforms in all material respects,
and the Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus will, when they become effective
or are filed with the Commission, as the case may be, conform in all
material respects to the requirements of the Securities Act and the Rules
and Regulations and do not and will not, as of the applicable Effective
Date (as to the Registration Statement and any amendment thereto) and as of
the applicable filing date (as to the Prospectus and any amendment or
supplement thereto) 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; provided that no representation or
warranty is made as to information contained in or omitted from the
Registration Statement or the Prospectus 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
inclusion therein.
(c) The Company and each of its significant subsidiaries (as
defined in Rule 1-02 of Regulation S-X under the Securities Act) (each, a
"Significant Subsidiary" and collectively, "Significant Subsidiaries"),
which are listed on Schedule 2 hereto, have been duly incorporated (in the
case of each Significant Subsidiary which is a corporation) or otherwise
validly formed and are validly existing in good standing under the laws of
their respective jurisdictions of organization, are duly qualified to do
business and are in good standing in each jurisdiction in which their
respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, except where failure to
have such qualifications would not, singly or in the aggregate, have a
material adverse effect on the consolidated financial position, results of
operation, business or prospects of the Company and its subsidiaries, taken
as a whole, and have all power and authority necessary to own or hold their
respective properties and to conduct the businesses in which they are
engaged. The Company has full power to execute and deliver and perform its
obligations under this Agreement and each of the Operative Documents to
which it is a party.
(d) 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 authorized and validly issued, are fully paid and
non-assessable and conform to the description thereof contained in the
Prospectus; and all of the issued shares of capital stock of each
Significant Subsidiary (in the case of each Significant Subsidiary which is
a corporation) have been duly authorized and validly issued and are fully
paid and non-assessable and (except for directors' qualifying shares and as
disclosed in the Prospectus) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims.
(e) The Indenture has been duly authorized and, upon execution and
delivery of the Supplemental Indenture relating to the Securities by the
Trustee and the Company, will constitute a valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms,
except as the enforceability thereof may be limited by (i) bankruptcy,
insolvency or other similar laws affecting creditors' rights generally and
(ii) the availability of equitable remedies may be limited by equitable
principles of general applicability.
(f) The Notes have been duly authorized and, at each Delivery
Date, will have been validly executed and delivered by the Company. When
the Notes have been issued, executed and authenticated in accordance with
the provisions of the Indenture and delivered to the purchasers thereof
against payment for the stated consideration therefor, they 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 the enforceability thereof may be limited by (i)
bankruptcy, insolvency or other similar laws affecting creditors' rights
generally and (ii) the availability of equitable remedies may be limited by
equitable principles of general applicability. At each Delivery Date, the
Notes will conform as to legal matters to the description thereof contained
in the Prospectus.
(g) The Pledge Agreement and the Purchase Contract Agreement have
been duly authorized and, upon execution and delivery thereof, will
constitute valid and legally binding agreements of the Company enforceable
in accordance with their terms except as the enforceability thereof may be
limited by (i) bankruptcy, insolvency or other similar laws affecting
creditors' rights generally and (ii) the availability of equitable remedies
may be limited by equitable principles of general applicability.
(h) The Remarketing Agreement has been duly authorized and, upon
execution and delivery thereof, will constitute a valid and legally binding
agreement of the Company enforceable in accordance with its terms except as
(a) the enforceability thereof may be limited by (i) bankruptcy, insolvency
or other similar laws affecting creditors' rights generally and rights of
acceleration and (ii) the availability of equitable remedies may be limited
by equitable principles of general applicability and (b) rights to
indemnification and contribution thereunder may be limited by applicable
law.
(i) The FELINE PACS (which include the Income PACS) have been duly
authorized and when executed and delivered by the Company will constitute
the valid and binding obligations of the Company, enforceable in accordance
with their terms except as the enforceability thereof may be limited by (i)
bankruptcy, insolvency or other similar laws affecting creditors' rights
generally and (ii) the availability of equitable remedies may be limited by
equitable principles of general applicability, and will conform in all
material respects to the description thereof in the Prospectus. The Income
PACS and the Shares have been duly registered under the Exchange Act and
have been authorized for listing on the New York Stock Exchange, subject to
official notice of issuance; and the issuance of the FELINE PACS will not
be subject to preemptive or other similar rights. All corporate action
required to be taken for the authorization, issuance and delivery of the
Income PACS has been validly taken.
(j) The Shares to be issued and sold by the Company pursuant to
the Purchase Contract Agreement have been duly authorized for issuance by
the Company and, when issued and delivered in accordance with the
provisions of the Purchase Contract Agreement, will be validly issued and
fully paid and non- assessable; and the issuance of the Shares is not and
will not be subject to preemptive or other similar rights, and the
preferred stock purchase rights under the Rights Agreement dated as of
February 6, 1996 (the "Rights Agreement") to which holders of the Shares
will be entitled, will be validly issued and the Shares will conform in all
material respects to the description thereof contained in the Prospectus.
(k) This Agreement has been duly authorized, executed and
delivered by the Company.
(l) The execution, delivery and performance of each of the
Operative Documents by the Company and the consummation of the transactions
contemplated hereby or 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 Significant
Subsidiaries is a party or by which the Company or any of its Significant
Subsidiaries is bound or to which any of the property or assets of the
Company or any of its Significant Subsidiaries is subject, other than such
conflicts, breaches, violations or defaults which, singly or in the
aggregate, would not have a material adverse effect on the consolidated
financial position, results of operations, business or prospects 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 Significant Subsidiaries or any statute or any order,
rule or regulation known to the Company of any court or governmental agency
or body having jurisdiction over the Company or any of its Significant
Subsidiaries or any of their properties or assets; and except for the
registration of the Securities under the Securities Act and the Exchange
Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act, the Securities
Act, applicable state securities laws and securities laws of foreign
jurisdictions 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
any of the Operative Documents and the consummation of the transactions
contemplated hereby or thereby.
(m) Except for that certain Xxxxxxxx Preferred Stock Remarketing,
Registration Rights and Support Agreement dated March 23, 2001 among the
Company, Xxxxxxxx Share Trust, WCG Note Trust, United States Trust Company
of New York and Credit Suisse First Boston Corporation and that certain
Joint Venture Sponsor Agreement dated December 28, 2000 among the Company,
Xxxxxxxx Field Services Company, Prairie Wolf Investors, L.L.C., Arctic Fox
Assets, L.L.C., Xxxxxxxx Energy (Canada), Inc. and other Indemnified
Parties (as defined therein), and except as described in the Prospectus,
there are no contracts, agreements or understandings between the Company
and any person granting such person the right to require the Company to
file a registration statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such person or to require
the Company to include any securities of the Company in the securities
registered pursuant to the Registration Statement.
(n) Neither the Company nor any of its Significant Subsidiaries
has sustained, since the respective dates as of which information is given
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
that has resulted in, or is reasonably likely to result in, a material
adverse change in the consolidated financial position, results of
operations, business or prospects of the Company and its subsidiaries,
taken as a whole, otherwise than as set forth or contemplated in the
Prospectus; and, since such date, there has not been any material change in
the capital stock or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the consolidated
financial position, results of operations, business or prospects of the
Company and its subsidiaries, taken as a whole, otherwise than as set forth
or contemplated in the Prospectus.
(o) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included 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
may be indicated in the notes thereto.
(p) Ernst & Young LLP, who have certified certain financial
statements of the Company, whose report appears, or is incorporated by
reference, in the Prospectus and who have delivered the initial letter
referred to in Section 7(h) hereof, are independent public accountants as
required by the Securities Act and the Rules and Regulations.
(q) The Company and each of its Significant Subsidiaries carry, or
are covered by, insurance in such amounts and covering such risks as the
Company believes is adequate for the conduct of their respective businesses
and the value of their respective properties and as the Company believes is
customary for companies engaged in similar businesses in similar
industries.
(r) The Company and each of its Significant Subsidiaries own or
possess, or can acquire on reasonable terms, adequate rights to use all
material patents, patent applications, trademarks, service marks, trade
names, copyrights and licenses necessary for the conduct of their
respective businesses and have no reason to believe that the conduct of
their respective businesses will conflict with, and have not received any
notice of any claim of conflict with, any such rights of others which,
singly or in the aggregate, in the judgment of the Company, is reasonably
likely to result in any material adverse change in the consolidated
financial position, results of operations, business or prospects of the
Company and its subsidiaries, taken as a whole.
(s) Except as described in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
Significant Subsidiaries is a party or of which any property or assets of
the Company or any of its Significant Subsidiaries is the subject which
could reasonably be expected to have a material adverse effect on the
consolidated financial position, results of operations, business or
prospects 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.
(t) 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 Rules and Regulations which have
not been described in the Prospectus or filed as exhibits to the
Registration Statement.
(u) No business or related party transaction exists which is
required by Item 404 of Regulation S-K to be described in the Prospectus
which is not so described.
(v) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined in
ERISA) for which the Company would have any liability; the Company has not
incurred and does not expect to incur liability under (i) Title IV of ERISA
with respect to termination of, or withdrawal from, any "pension plan" or
(ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the
"Code"); and each "pension plan" for which the Company would have any
liability that is intended to be qualified under Section 401(a) of the Code
is so qualified in all material respects and nothing has occurred, whether
by action or by failure to act, which would cause the loss of such
qualification.
(w) The Company has filed all material federal, state and local
income and franchise tax returns required to be filed through the date
hereof and has paid all taxes due thereon, other than those filings or
payments being contested in good faith, and the Company has not received
notice that any tax deficiency has been determined adversely to the Company
or any of its Significant Subsidiaries which has had or is reasonably
likely to have a material adverse effect on the consolidated financial
position, results of operations, business or prospects of the Company and
its subsidiaries, taken as a whole.
(x) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be
disclosed in the Prospectus or with respect to the subsequent issuance of
shares of Common Stock, if any, pursuant to employee or director benefit
plans, the Company has not (i) issued or granted any securities, (ii)
incurred any liability or obligation, direct or contingent, other than
liabilities and obligations which were incurred in the ordinary course of
business, (iii) entered into any transaction not in the ordinary course of
business, except, in case of (ii) and (iii), for such liabilities,
obligations or transactions that have not had or are not reasonably
expected to have, a material adverse effect on the consolidated financial
condition, results of operations, business or prospects of the Company and
its subsidiaries, taken as a whole or (iv) declared or paid any dividend on
its capital stock.
(y) The Company (i) makes and keeps accurate books and records and
(ii) maintains internal accounting controls which provide reasonable
assurance that (A) transactions are executed in accordance with
management's authorization, (B) transactions are recorded as necessary to
permit preparation of its financial statements and to maintain
accountability for its assets, (C) access to its assets is permitted only
in accordance with management's authorization and (D) the reported
accountability for its assets is compared with existing assets at
reasonable intervals.
(z) Neither the Company nor any of its Significant Subsidiaries
(i) is in violation of its charter or by-laws, (ii) is in default in any
material respect, and no event has occurred which, with notice or lapse of
time or both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which any
of its properties or assets is subject or (iii) is in violation in any
material respect of any law, ordinance, governmental rule, regulation or
court decree to which it or its property or assets may be subject or has
failed to obtain any material license, permit, certificate, franchise or
other governmental authorization or permit necessary to the ownership of
its property or to the conduct of its business except, in case of (ii) and
(iii), for such defaults, violations, or failures to obtain such
authorizations or permits that have not had or are not reasonably expected
to have, a material adverse effect on the consolidated financial condition,
results of operations, business or prospects of the Company and its
subsidiaries, taken as a whole.
(aa) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of toxic wastes, medical
wastes, hazardous wastes or hazardous substances by the Company or any of
its Significant Subsidiaries (or, to the knowledge of the Company, any of
their predecessors in interest) at, upon or from any of the property now or
previously owned or leased by the Company or its Significant Subsidiaries
in violation of any applicable law, ordinance, rule, regulation, order,
judgment, decree or permit or which would require remedial action under any
applicable law, ordinance, rule, regulation, order, judgment, decree or
permit, except for any violation or remedial action which would not have,
or could not be reasonably likely to have, singularly or in the aggregate
with all such violations and remedial actions, a material adverse effect on
the consolidated financial position, results of operations, business or
prospects of the Company and its subsidiaries, taken as a whole; there has
been no material spill, discharge, leak, emission, injection, escape,
dumping or release of any kind onto such property or into the environment
surrounding such property of any toxic wastes, medical wastes, solid
wastes, hazardous wastes or hazardous substances due to or caused by the
Company or any of its Significant Subsidiaries or with respect to which the
Company or any of its Significant Subsidiaries have knowledge, except for
any such spill, discharge, leak, emission, injection, escape, dumping or
release which would not have or would not be reasonably likely to have,
singularly or in the aggregate with all such spills, discharges, leaks,
emissions, injections, escapes, dumpings and releases, a material adverse
effect on the consolidated financial position, results of operations,
business or prospects of the Company and its subsidiaries, taken as a
whole; and the terms "hazardous wastes", "toxic wastes", "hazardous
substances" and "medical wastes" shall have the meanings specified in any
applicable local, state, federal and foreign laws or regulations with
respect to environmental protection.
(bb) The Company is not, and, after giving effect to the offering
contemplated hereby and the application of the net proceeds therefrom as
described in the Prospectus, will not be, an "investment company" as
defined in the Investment Company Act of 1940, as amended.
SECTION 2. Purchase of the Securities by the Underwriters. On the
basis of the representations and warranties contained in, and subject to
the terms and conditions of, this Agreement, the Company agrees to sell the
Firm Securities to the several Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase the number of Firm Securities
set forth opposite that Underwriter's name in Schedule 1 hereto. The
respective purchase obligations of the Underwriters with respect to the
Firm Securities shall be rounded among the Underwriters to avoid fractional
shares, as the Representatives may determine.
In addition, the Company grants to the Underwriters an option to
purchase up to 6,000,000 Option Securities. Such option is granted for the
purpose of covering over-allotments in the sale of Firm Securities and is
exercisable as provided in Section 4 hereof. Option Securities shall be
purchased severally for the account of the Underwriters in proportion to
the number of Firm Securities set forth opposite the name of such
Underwriter in Schedule 1 hereto.
The price of both the Firm Securities and any Option Securities to
be paid by the Underwriters shall be $24.25 per Income PACS.
The Company shall not be obligated to deliver any of the
Securities to be delivered on any Delivery Date (as hereinafter defined),
except upon payment for all the Securities to be purchased on such Delivery
Date as provided herein.
SECTION 3. Offering by the Underwriters.
Upon authorization by the Representatives of the release of the
Firm Securities, the several Underwriters propose to offer the Firm
Securities for sale upon the terms and conditions set forth in the
Prospectus.
SECTION 4. Delivery of and Payment for the Securities. Delivery of
and payment for the Firm Securities shall be made at the offices of Xxxxx
Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00
A.M., New York City time, on January 14, 2002 or at such other date or
place as shall be determined by agreement between the Representatives and
the Company. This date and time are sometimes referred to as the "First
Delivery Date." On the First Delivery Date, the Company shall deliver or
cause to be delivered certificates representing the Firm Securities to the
Representatives for the account of each Underwriter, or deliver or cause to
be delivered to a securities intermediary designated by the Representatives
of such certificates and crediting to the securities account designated by
such Representatives at such securities intermediary for the account of
each Underwriter of security entitlements in respect of the Firm Securities
against, in each case, payment to or upon the order of the Company of the
purchase price by wire transfer in immediately available funds. 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 Firm Securities shall be registered in such
names and in such denominations as the Representatives shall request in
writing not less than two full business days prior to the First Delivery
Date. For the purpose of expediting the checking and packaging of the
certificates for the Firm Securities, the Company shall make the
certificates representing the Firm Securities available for inspection by
the Representatives in New York, New York, not later than 2:00 P.M., New
York City time, on the business day prior to the First Delivery Date.
The option granted in Section 2 will expire 30 days after the date
of this Agreement, subject to certain limitations separately agreed upon,
and may be exercised in whole or in part from time to time by written
notice being given to the Company by the Representatives. Such notice shall
set forth the aggregate number of shares of Option Securities as to which
the option is being exercised, the names in which the certificates
representing the Option Securities are to be registered, the denominations
in which such certificates representing the Option Securities are to be
issued and the date and time, as determined by the Representatives, when
the certificates representing the Option Securities are to be delivered;
provided, however, that this date and time shall not be earlier than the
First Delivery Date nor earlier than the second business day after the date
on which the option shall have been exercised nor later than the fifth
business day after the date on which the option shall have been exercised.
The date and time the certificates representing the Option Securities are
delivered are sometimes referred to as a "Second Delivery Date" and the
First Delivery Date and any Second Delivery Date are sometimes each
referred to as a "Delivery Date".
Delivery of and payment for the Option Securities shall be made at
the place specified in the first sentence of the first paragraph of this
Section 4 (or at such other place as shall be determined by agreement
between the Representatives and the Company) at 10:00 A.M., New York City
time, on such Second Delivery Date. On such Second Delivery Date, the
Company shall deliver or cause to be delivered the certificates
representing the Option Securities to the Representatives for the account
of each Underwriter against payment to or upon the order of the Company of
the purchase price by wire transfer in immediately available funds. 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 Option Securities shall be
registered in such names and in such denominations as the Representatives
shall request in the aforesaid written notice. For the purpose of
expediting the checking and packaging of the certificates for the Option
Securities, the Company shall make the certificates representing the Option
Securities available for inspection by the Representatives in New York, New
York, not later than 2:00 P.M., New York City time, on the business day
prior to such Second Delivery Date.
The Notes will be pledged with the Collateral Agent to secure the
obligations of the holders to purchase Common Stock under the Purchase
Contracts. Such pledge shall be effected by the transfer to the Collateral
Agent of the relevant Notes at the relevant Date of Delivery in accordance
with the Pledge Agreement.
SECTION 5. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Securities Act not later than Commission's close of business on the
second business day following the execution and delivery of this Agreement;
to make no further amendment or any supplement to the Registration
Statement or to the Prospectus except as permitted herein; to advise the
Representatives, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has
been filed and to furnish the Representatives with copies thereof; to
advise the Representatives, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any order preventing
or suspending the use of any Preliminary Prospectus or the Prospectus, of
the suspension of the qualification of the Securities for offering or sale
in any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for
additional information; and, in the event of the issuance of any stop order
or of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification, to use
promptly its reasonable best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to
counsel for the Underwriters a conformed copy of the Registration Statement
as originally filed with the Commission, and each amendment thereto filed
with the Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to the Representatives such number of the
following documents as the Representatives shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding exhibits) and
(ii) each Preliminary Prospectus, the Prospectus and any amended or
supplemented Prospectus; and, if the delivery of a prospectus is required
at any time after the Effective Time in connection with the offering or
sale of the Securities or any other securities relating thereto and if at
such time any events 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 to amend or
supplement the Prospectus in order to comply with the Securities Act, to
notify the Representatives and, upon their request, to prepare and furnish
without charge to each Underwriter and to any dealer in securities as many
copies as the Representatives may from time to time reasonably request of
an amended or supplemented Prospectus which will correct such statement or
omission or effect such compliance.
(d) 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;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any Prospectus
pursuant to Rule 424 of the Rules and Regulations, to furnish a copy
thereof to the Representatives and counsel for the Underwriters and obtain
the consent of the Representatives to the filing, which consent shall not
be unreasonably withheld;
(f) As soon as practicable after the date of this Agreement, to
make generally available to the Company's security holders and to deliver
to the Representatives an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of
the Securities Act and the Rules and Regulations (including, at the option
of the Company, Rule 158);
(g) Promptly from time to time to take such action, with the
cooperation of the Representatives, 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
reasonably 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;
(h) During the period of ninety (90) days from the date of this
Agreement, the Company will not, without the prior written consent of
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (A) directly or
indirectly, offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase or otherwise transfer or dispose of
any FELINE PACS, purchase contracts, Common Stock or any similar securities
or any security convertible into or exercisable or exchangeable for or
repayable with FELINE PACS, purchase contracts, Common Stock or similar
securities; or (B) directly or indirectly, enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, the
economic equivalent of ownership of FELINE PACS, purchase contracts, Common
Stock or similar securities or any security convertible into or exercisable
or exchangeable for or repayable with FELINE PACS, purchase contracts,
Common Stock or similar securities whether any such swap or transaction is
to be settled by delivery of FELINE PACS, purchase contracts, Common Stock
or similar securities or other securities. The foregoing sentence shall not
apply (i) in connection with the offering and sale of any Securities to the
Underwriters pursuant to this Agreement; (ii) to any purchases, issuances
or grants of options, rights or warrants under the Company's employee or
director compensation and benefits plans, or used for similar employee
compensation or benefit purposes; (iii) to any purchases and issuances
under the Company's direct stock purchase and dividend reinvestment plan or
(iv) to shares of Common Stock used as consideration for acquisitions or
issued in connection with strategic alliances (provided that the recipient
of any such shares of Common Stock agrees to be bound by the transfer
restrictions set forth herein for the unexpired remaining term thereof);
(i) To apply for the listing of the Income PACS and the Shares on
the New York Stock Exchange, and to use its reasonable best efforts to
complete that listing, subject only to official notice of issuance, prior
to the First Delivery Date;
(j) To reserve and keep available at all times, free of preemptive
or other similar rights and liens and adverse claims, sufficient shares of
Common Stock to satisfy its obligation to issue Shares upon settlement of
the Purchase Contracts;
(k) To apply the net proceeds from the sale of the Securities as
set forth in the Prospectus; and
(l) To take such steps as shall be necessary to ensure that
neither the Company nor any subsidiary shall become an "investment company"
as defined in the Investment Company Act of 1940, as amended.
SECTION 6. Expenses. The Company agrees to pay (a) the costs
incident to the authorization, issuance, sale 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 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 producing and distributing the
Operative Documents and any other related documents in connection with the
offering, purchase, sale and delivery of the Securities; (e) any filing
fees incident to securing the review by the National Association of
Securities Dealers, Inc. of the terms of sale of the Securities; (f) any
applicable listing or other fees; (g) the fees and expenses (not in excess,
in the aggregate, of $10,000) of qualifying the Securities under the
securities laws of the several jurisdictions as provided in Section 5(g)
and of preparing, printing and distributing a Blue Sky Memorandum
(including related fees and expenses of counsel to the Underwriters); (h)
the costs and expenses of the Company relating to investor presentations on
any "road show" undertaken in connection with the marketing of the offering
of the Securities, including, without limitation, expenses associated with
the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants, and
the cost of any aircraft chartered (with the approval of the Company) in
connection with the road show and (i) all other costs and expenses incident
to the performance of the obligations of the Company under this Agreement;
provided that, except as provided in this Section 6 and in Section 11, 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.
SECTION 7. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when
made and on each Delivery Date, of the representations and warranties of
the Company contained herein, to the performance by the Company of its
obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 5(a); 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.
(b) All corporate proceedings and other legal matters incident to
the authorization of the Operative Documents, the Securities, the
Registration Statement and the Prospectus, and all other legal matters
relating to such Operative Documents and the transactions contemplated
thereby 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) Xxxxxxx xxx Xxxxx, Senior Vice President and General Counsel
of the Company, shall have furnished to the Representatives his written
opinion, addressed to the Underwriters and dated such Delivery Date, in
form and substance reasonably satisfactory to the Representatives, to the
effect that:
(i) The Company and each of its Significant Subsidiaries have
been duly incorporated (in the case of each Significant Subsidiary
that is a corporation) or otherwise validly formed and are validly
existing in good standing under the laws of their respective
jurisdictions of organization, are duly qualified to do business
and are in good standing in each jurisdiction in which their
respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, except to the
extent such failure to be qualified or in good standing would not
have a material adverse effect on the consolidated financial
position, results of operations, business or prospects of the
Company and its subsidiaries, taken as a whole, and have all power
and authority necessary to own or hold their respective properties
and conduct the businesses in which they are engaged as described
in or contemplated by the Registration Statement; and all of the
issued shares of capital stock of each Significant Subsidiary (in
the case of each Significant Subsidiary that is a corporation)
have been duly and validly authorized and issued and are fully
paid, non-assessable and (except for directors' qualifying shares
and as disclosed in the Prospectus) are owned directly or
indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims. The Company has full power to
execute and deliver and perform its obligations under this
Agreement and each of the Operative Documents to which it is a
party;
(ii) To the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its Significant
Subsidiaries is a party or of which any property or assets of the
Company or any of its Significant Subsidiaries is the subject
which could reasonably be expected to have a material adverse
effect on the consolidated financial position, results of
operations, business or prospects 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 pending by
governmental authorities or threatened by others;
(iii) To the best of such counsel's knowledge, except for that
certain Xxxxxxxx Preferred Stock Remarketing, Registration Rights
and Support Agreement dated March 23, 2001 among the Company,
Xxxxxxxx Share Trust, WCG Note Trust, United States Trust Company
of New York and Credit Suisse First Boston Corporation and that
certain Joint Venture Sponsor Agreement dated December 28, 2000
among the Company, Xxxxxxxx Field Services Company, Prairie Wolf
Investors, L.L.C., Arctic Fox Assets, L.L.C., Xxxxxxxx Energy
(Canada), Inc. and other Indemnified Parties (as defined therein),
and except as described in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to
any securities of the Company owned or to be owned by such person
or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement;
(iv) The Company is in compliance in all material respects with
all presently applicable provisions of ERISA; no "reportable
event" (as defined in ERISA) has occurred with respect to any
"pension plan" (as defined in ERISA) for which the Company would
have any liability; the Company has not incurred and does not
expect to incur liability under (i) Title IV of ERISA with respect
to termination of, or withdrawal from, any "pension plan" or (ii)
Sections 412 or 4971 of the Code; and each "pension plan" for
which the Company would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in all
material respects and nothing has occurred, whether by action or
by failure to act, which would cause the loss of such
qualification;
(v) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of toxic wastes,
medical wastes, hazardous wastes or hazardous substances by the
Company or any of its Significant Subsidiaries (or, to the
knowledge of such counsel, any of their predecessors in interest)
at, upon or from any of the property now or previously owned or
leased (but not including property on which the Company had or has
easements or similar rights) by the Company or its Significant
Subsidiaries in violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit or which would
require remedial action under any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit, except for any
violation or remedial action which would not have, or could not be
reasonably likely to have, singularly or in the aggregate with all
such violations and remedial actions, a material adverse effect on
the consolidated financial position, results of operations,
business or prospects of the Company and its subsidiaries, taken
as a whole; there has been no material spill, discharge, leak,
emission, injection, escape, dumping or release of any kind onto
such property or into the environment surrounding such property of
any toxic wastes, medical wastes, solid wastes, hazardous wastes
or hazardous substances due to or caused by the Company or any of
its Significant Subsidiaries or with respect to which the Company
or any of its Significant Subsidiaries have knowledge, except for
any such spill, discharge, leak, emission, injection, escape,
dumping or release which would not have or would not be reasonably
likely to have, singularly or in the aggregate with all such
spills, discharges, leaks, emissions, injections, escapes,
dumpings and releases, a material adverse effect on the
consolidated financial position, results of operations, business
or prospects of the Company and its subsidiaries, taken as a
whole;
(vi) The Company has an authorized capitalization as set forth in
the Prospectus under the "Actual" column under the caption
"Capitalization," and all of the issued shares of capital stock of
the Company have been duly authorized and validly issued, are
fully paid and non-assessable and conform in all material respects
to the description thereof contained in the Prospectus;
(vii) The Indenture and the Supplemental Indenture have been duly
authorized, executed and delivered by the Company;
(viii) The Notes have been duly authorized, executed and delivered
by the Company;
(ix) The Pledge Agreement, the Purchase Contract Agreement and the
Remarketing Agreement have been duly authorized, executed and
delivered by the Company;
(x) The Income PACS have been duly authorized, executed and
delivered by the Company and all corporate action required to be
taken for the authorization, issuance and delivery of the FELINE
PACS has been validly taken;
(xi) The Shares to be issued and sold by the Company pursuant to
the Purchase Contract Agreement have been duly authorized for
issuance by the Company and, when issued and delivered in
accordance with the provisions of the Purchase Contract Agreement,
will be validly issued and fully paid and non-assessable; and the
issuance of the Shares is not and will not be subject to
preemptive or other similar rights, and the preferred stock
purchase rights under the Rights Agreement to which holders of the
Shares will be entitled, will be validly issued and the Shares
will conform in all material respects to the description thereof
contained in the Prospectus;
(xii) Except for that certain Xxxxxxxx Preferred Stock
Remarketing, Registration Rights and Support Agreement dated March
23, 2001 among the Company, Xxxxxxxx Share Trust, WCG Note Trust,
United States Trust Company of New York and Credit Suisse First
Boston Corporation and that certain Joint Venture Sponsor
Agreement dated December 28, 2000 among the Company, Xxxxxxxx
Field Services Company, Prairie Wolf Investors, L.L.C., Arctic Fox
Assets, L.L.C., Xxxxxxxx Energy (Canada), Inc. and other
Indemnified Parties (as defined therein) and except as described
in the Prospectus, there are no preemptive or other rights to
subscribe for or to purchase, nor any restriction upon the voting
or transfer of, any shares of the Common Stock pursuant to the
Company's charter or by-laws or any agreement or other instrument
to which the Company is a party;
(xiii) Neither the Company nor any of its Significant Subsidiaries
(i) is in violation of its charter or by-laws, (ii) is in default
in any material respect, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default,
in the due performance or observance of any term, covenant or
condition contained in any material indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which it
is a party or by which it is bound or to which any of its
properties or assets is subject or (iii) is in violation in any
material respect of any law, ordinance, governmental rule,
regulation or court decree to which it or its property or assets
may be subject or has failed to obtain any material license,
permit, certificate, franchise or other governmental authorization
or permit necessary to the ownership of its property or to the
conduct of its business except, in case of (ii) and (iii), for
such defaults, violations, or failures to obtain such
authorizations or permits that have not had or are not reasonably
expected to have, a material adverse effect on the consolidated
financial condition, results of operations, business or prospects
of the Company and its subsidiaries, taken as a whole;
(xiv) The execution, delivery and performance of the Operative
Documents by the Company and the consummation of the transactions
contemplated 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 Significant Subsidiaries is a party or by which the
Company or any of its Significant Subsidiaries is bound or to
which any of the property or assets of the Company or any of its
Significant Subsidiaries is subject, other than such conflicts,
agreements, breaches, violations or defaults which, singly or in
the aggregate, would not have a material adverse effect on the
consolidated financial position, results of operations, business
or prospects 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
Significant Subsidiaries or any statute or any order, rule or
regulation known to the Company of any court or governmental
agency or body having jurisdiction over the Company or any of its
Significant Subsidiaries or any of their properties or assets; and
except for the registration of the Securities under the Securities
Act and the Exchange Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under the Exchange Act, the Securities Act, applicable state
securities laws and securities laws of foreign jurisdictions 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 the Operative Documents and the consummation of the
transactions contemplated thereby;
(xv) The Company is not, and after giving effect to the offering
of the Securities and the application of the net proceeds
therefrom will not be, an "investment company" as defined in the
Investment Company Act of 1940, as amended;
(xvi) The statements (1) under the captions "Description of Debt
Securities", "Description of Common Stock", "Description of
Preferred Stock" and "Plan of Distribution" in the Basic
Prospectus, (2) in the Registration Statement under Item 15 and
(3) in the Company's most recent Annual Report on Form 10-K or
Form 10/K-A, as the case may be, and in the Company's most recent
Quarterly Report on Form 10-Q under "Business" and "Legal
Proceedings", in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred
to therein, fairly present the information called for with respect
to such legal matters, documents or proceedings and fairly
summarize the matters referred to therein;
(xvii) After due inquiry, such counsel does not know of any legal
or governmental proceeding pending or threatened to which the
Company or any of its subsidiaries is subject which is required to
be described or of any contract or other document which is
required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration
Statement which is not described or filed as required; and
(xviii) Such counsel (a) is of the opinion that (except as to the
financial statements and financial and statistical data included
therein, as to which such counsel need not express any opinion)
each document, if any, filed pursuant to the Exchange Act and
incorporated by reference into the Registration Statement and the
Prospectus complied when so filed as to form in all material
respects with the Exchange Act and the rules and regulations of
the Commission thereunder, (b) is of the opinion that the
Registration Statement and the Prospectus, as amended or
supplemented, if applicable (except as to the financial statements
included therein, as to which such counsel need not express any
opinion), comply as to form in all material respects with the
Securities Act and the Rules and Regulations, (c) believes that
(except as to the financial statements and financial and
statistical data included therein, as to which such counsel need
not express any belief), each part of the Registration Statement
when such part became effective or was incorporated by reference
into the Registration Statement did not contain, and as of the
date of such opinion, does not contain, any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or to make the statements therein not misleading,
and (d) believes that (except as to the financial statements and
financial and statistical data included therein, as to which such
counsel need not express any belief) the Prospectus, as amended or
supplemented, if applicable, do not contain any untrue statement
of a material fact or omit to state a material fact necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may state that his opinion
is limited to matters governed by the Federal laws of the United States of
America, the laws of the State of New York and the State of Oklahoma and
the General Corporation Law of the State of Delaware.
(d) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to
the Company, shall have furnished to the Representatives their written
opinion, addressed to the Underwriters and dated such Delivery Date, in
form and substance reasonably satisfactory to the Representatives, to the
effect that:
(i) The Indenture, upon execution and delivery of the
Supplemental Indenture relating to the Securities by the Trustee
and the Company, will constitute a valid and binding agreement of
the Company, enforceable against the Company in accordance with
its terms, except as the enforceability thereof may be limited by
(i) bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect
affecting creditors' rights generally and (ii) general principles
of equity (regardless of whether enforceability is considered in a
proceeding in law or in equity);
(ii) When the Notes have been issued, executed and authenticated
in accordance with the provisions of the Indenture and delivered
to the purchasers thereof against payment for the stated
consideration therefor, they 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 the enforceability thereof may be limited
by (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or hereafter in
effect affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is
considered in a proceeding in law or in equity). The Notes conform
as to legal matters to the description thereof contained in the
Prospectus;
(iii) The Pledge Agreement and the Purchase Contract Agreement,
upon execution and delivery thereof, will constitute valid and
legally binding agreements of the Company enforceable in
accordance with their terms except as the enforceability thereof
may be limited by (i) bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect affecting creditors' rights generally and (ii)
general principles of equity (regardless of whether enforceability
is considered in a proceeding in law or in equity); provided,
however, that upon the occurrence of a Termination Event (as
defined in the Purchase Contract), Section 365(e)(1) of the
Bankruptcy Code (11 U.S.C. xx.xx. 101-1330, as amended) would not
substantively limit the provisions of Sections 3.15 and 5.06 of
the Purchase Contract Agreement or Section 5.4 of the Pledge
Agreement that require termination of the Purchase Contracts and
release of the Collateral Agent's security interest in (1) the
Notes, (2) the Treasury securities or (3) the applicable ownership
interest of the Treasury portfolio, as applicable, and the
transfer of such securities to the Purchase Contract Agent (for
the benefit of the holders of the Securities) and, provided,
further, however, that (i) the foregoing opinion is subject to the
equitable powers of the Bankruptcy Court and the Bankruptcy
Court's power under Section 105(a) of the Bankruptcy Code and (ii)
procedural restrictions respecting relief from the automatic stay
under Section 362 of the Bankruptcy Code may delay the timing of
the exercise of such rights and remedies;
(iv) The Remarketing Agreement, upon execution and delivery
thereof, will constitute a valid and legally binding agreement of
the Company enforceable in accordance with its terms except as (i)
the enforceability thereof may be limited by (a) bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws now or hereafter in effect affecting creditors'
rights generally and (b) general principles of equity (regardless
of whether enforceability is considered in a proceeding in law or
in equity) and (ii) rights to indemnification and contribution
contained therein may be limited by state and federal securities
laws or the public policy underlying such laws;
(v) When the FELINE PACS have been issued, executed and
authenticated in accordance with the provisions of the Purchase
Contract Agreement and delivered to the purchasers thereof
pursuant to the terms of the Underwriting Agreement, they will
constitute the valid and binding obligations of the Company,
enforceable in accordance with their terms except as the
enforceability thereof may be limited by (i) bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws now or hereafter in effect affecting creditors'
rights generally and (ii) general principles of equity (regardless
of whether enforceability is considered in a proceeding in law or
in equity); provided, however, that upon the occurrence of a
Termination Event (as defined in the Purchase Contract), Section
365(e)(1) of the Bankruptcy Code (11 U.S.C. xx.xx. 101- 1330, as
amended) would not substantively limit the provisions of Sections
3.15 and 5.06 of the Purchase Contract Agreement or Section 5.4 of
the Pledge Agreement that require termination of the Purchase
Contracts and release of the Collateral Agent's security interest
in (1) the Notes, (2) the Treasury securities or (3) the
applicable ownership interest of the Treasury portfolio, as
applicable, and the transfer of such securities to the Purchase
Contract Agent (for the benefit of the holders of the Securities)
and, provided, further, however, that (i) the foregoing opinion is
subject to the equitable powers of the Bankruptcy Court and the
Bankruptcy Court's power under Section 105(a) of the Bankruptcy
Code and (ii) procedural restrictions respecting relief from the
automatic stay under Section 362 of the Bankruptcy Code may delay
the timing of the exercise of such rights and remedies;
(vi) Although the discussion set forth in the Prospectus
Supplement under the heading "Certain United States Federal Income
Tax Consequences" does not purport to discuss all possible United
States federal income tax consequences of the purchase, ownership
and disposition of FELINE PACS, such discussion constitutes, in
all material respects, a fair and accurate summary of the United
States federal income tax consequences of the purchase, ownership
and disposition of the FELINE PACS, based upon current United
States federal income tax law;
(vii) Such counsel has reviewed the discussion set forth under
"ERISA Considerations" in the Prospectus Supplement and are of the
opinion that to the extent the discussion relates to conclusions
of law, the discussion is accurate in all material respects; and
(viii) The statements in the Prospectus Supplement under the
captions "Description of the FELINE PACS", "Description of the
Purchase Contracts", "Description of the Purchase Contract
Agreement and the Pledge Agreement" and "Description of the
Notes", in each case insofar as such statements purport to
summarize certain provisions of the Indenture, the Purchase
Contracts, the Pledge Agreement and the Notes, fairly summarize
such provisions in all material respects.
Such counsel shall also state that they have been orally advised
by the Commission that the Indenture has been qualified under the Trust
Indenture Act.
(e) Cravath, Swaine & Xxxxx, counsel for XX Xxxxxx Chase Bank (the
"Bank"), as Purchase Contract Agent, shall have furnished to the
Representatives its written opinion, addressed to the Underwriters and
dated such Delivery Date, in form and substance reasonably satisfactory to
the Representatives, to the effect that:
(i) the Bank has been duly incorporated and is validly existing as
a banking corporation in good standing under the laws of the State
of New York;
(ii) the Bank has the corporate trust power and authority to
execute, deliver and perform its duties under the Purchase
Contract Agreement and the Pledge Agreement, has duly executed and
delivered the Purchase Contract Agreement and the Pledge
Agreement, and , insofar as the laws governing the trust powers of
the Bank are concerned and assuming due authorization, execution
and delivery thereof by the other parties thereto, each of the
Purchase Contract Agreement and the Pledge Agreement constitutes a
legal, valid and binding agreement of the Bank, enforceable
against the Bank in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other laws affecting creditors'
rights generally from time to time in effect and to general
principles of equity (including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing),
regardless of whether considered in a proceeding in equity or at
law;
(iii) no approval, authorization or other action by, or filing
with, any governmental authority of the United States of America
or the State of New York having jurisdiction over the trust powers
of the Bank is required in connection with the execution and
delivery by the Bank of the Purchase Contract Agreement or the
Pledge Agreement or the performance by the Bank of its duties
thereunder, except such as have been obtained, taken or made; and
(iv) the execution, delivery and performance by the Bank of the
Purchase Contract Agreement and the Pledge Agreement do not
conflict with or constitute a breach of the charter or bylaws of
the Bank.
(f) The Representatives shall have received from Xxxxx Xxxx &
Xxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated
such Delivery Date, with respect to the issuance and sale of the
Securities, the Registration Statement, the Prospectus and other related
matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the
Representatives shall have received from Ernst & Young a letter, in form
and substance satisfactory to the Representatives, addressed to the
Underwriters and dated the date hereof (i) confirming that they are
independent public accountants within the meaning of the Securities Act and
are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission and (ii) stating, as of the date hereof (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 hereof), the conclusions and
findings of such firm with respect to the financial information and other
matters ordinarily covered by accountants' "comfort letters" to
underwriters in connection with registered public offerings.
(h) With respect to the letter of Ernst & Young referred to in the
preceding paragraph and delivered to the Representatives concurrently with
the execution of this Agreement (the "initial letter"), the Company shall
have furnished to the Representatives a letter (the "bring-down letter") of
such accountants, addressed to the Underwriters and dated such Delivery
Date (i) confirming that they are independent public accountants within the
meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01
of Regulation S-X of the Commission, (ii) stating, as of the date of the
bring-down letter (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), the conclusions and
findings of such firm with respect to the financial information and other
matters covered by the initial letters and (iii) confirming in all material
respects the conclusions and findings set forth in the initial letter.
(i) The Company shall have furnished to the Representatives a
certificate, dated such Delivery Date, of its Chairman of the Board, its
President, a Vice President or its chief financial officer or Treasurer
stating that:
(i) The representations, warranties and agreements of the Company
in Section 1 are true and correct as of such Delivery Date; the
Company has complied with all its agreements contained herein; and
the conditions set forth in Sections 7(a), 7(j), 7(k) and 7(l)
have been fulfilled; and
(ii) They have carefully examined the Registration Statement and
the Prospectus and, in their opinion (A) as of the date of this
Agreement, the Registration Statement and Prospectus did 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)
since the date of this Agreement, no event has occurred which
should have been set forth in a supplement or amendment to the
Registration Statement or the Prospectus.
(j) Since the date of the latest audited financial statements
included in the Prospectus (A) neither the Company nor any of the
Significant Subsidiaries shall have sustained 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, otherwise than as set forth or contemplated in the
Prospectus or (B) there shall not have been any material change 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 consolidated financial position, results of operations,
business or prospects of the Company and its subsidiaries, taken as a
whole, otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case described in clause (A) or (B), 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 being delivered on such Delivery Date on the
terms and in the manner contemplated in the Prospectus.
(k) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (a) (i) trading in
securities generally on the New York Stock Exchange or the American Stock
Exchange, or trading in any securities of the Company on any exchange,
shall have been suspended or minimum prices shall have been established on
any such exchange by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (ii) a
general banking moratorium in New York shall have been declared by Federal
or New York state authorities, (iii) the United States shall have become
engaged in hostilities, there shall have been an escalation in hostilities
involving the United States or there shall have been a declaration of a
national emergency or war by the United States or (iv) there shall have
occurred a 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) that in the judgment of the Representatives is
material and adverse and (b) in the case of any of the events specified in
clauses (a)(i) through (a)(iv) above, such event, singly or together with
any other such event, makes it, in the judgment of the Representatives,
impracticable or inadvisable to proceed with the public offering or
delivery of the Securities being delivered on such Delivery Date on the
terms and in the manner contemplated in the Prospectus.
(l) There shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's securities by
any "nationally recognized statistical rating organization," as such term
is defined for purposes of Rule 436(g)(2) under the Securities Act.
(m) The New York Stock Exchange, Inc. shall have approved the
Income PACS and the Shares for listing, subject only to official notice of
issuance.
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.
SECTION 8. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each
Underwriter, its officers and employees and each person, if any, who
controls any Underwriter within the meaning of the Securities Act, from and
against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of the
Securities), to which that Underwriter, officer, employee or controlling
person may become subject, under the Securities Act 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 (A) any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement thereto or
(B) in any materials or information provided to investors by, or with the
approval of, the Company in connection with the marketing of the offering
of the Securities ("Marketing Materials"), including any roadshow or
investor presentations made to investors by the Company (whether in person
or electronically) or (ii) the omission or alleged omission to state in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or in
any amendment or supplement thereto, or in any Marketing Materials, any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and shall reimburse each Underwriter and
each such officer, employee or controlling person promptly upon demand for
any legal or other expenses reasonably incurred by that Underwriter,
officer, employee or controlling person in connection with investigating or
defending or preparing to defend against 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, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or in any such amendment or supplement, in
reliance upon and in conformity with written information concerning such
Underwriter furnished to the Company through the Representatives by or on
behalf of any Underwriter specifically for inclusion therein, which
information consists solely of the information specified in Section 8(e);
and, provided further, that the Company will not be liable to any
Underwriter with respect to any Preliminary Prospectus to the extent the
Company shall sustain the burden of proving that any such loss, claim,
damage or liability resulted from the fact that such Underwriter, in
contravention of a requirement of applicable law, sold Securities to a
person to whom such Underwriter failed to send or give, at or prior to the
Closing Date, a copy of the Prospectus, as then amended or supplemented,
if: (i) the Company has previously furnished copies thereof (in sufficient
quantity and sufficiently in advance of the Closing Date to allow for
distribution by the Closing Date) to the Underwriter and the loss, claim,
damage or liability of such Underwriter resulted from an untrue statement
or omission of a material fact contained in or omitted from the Preliminary
Prospectus which was corrected in the Prospectus as, if applicable, amended
or supplemented prior to the Closing Date and such Prospectus was required
by law to be delivered at or prior to the written confirmation of sale to
such person and (ii) such Prospectus (as amended or supplemented) would
have fully cured the defect giving rise to such loss, claim, damage or
liability. The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to any Underwriter or to any
officer, employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify
and hold harmless the Company, its officers and employees, each of its
directors, and each person, if any, who controls the Company within the
meaning of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Company or any such director, officer or controlling person may become
subject, under the Securities Act 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 any Preliminary Prospectus, the Registration Statement or the Prospectus
or in any amendment or supplement thereto, or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration Statement
or the Prospectus, or in any amendment or supplement thereto, any material
fact required to be stated therein or necessary to make the statements
therein 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 concerning
such Underwriter furnished to the Company through the Representatives by or
on behalf of that Underwriter specifically for inclusion therein, and shall
reimburse the Company and any such director, officer or controlling person
for any legal or other expenses reasonably incurred by the Company or any
such director, officer or controlling person in connection with
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability which any
Underwriter may otherwise have to the Company or any such director,
officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 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 under this Section 8, 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 from any liability which it may have under this
Section 8 except to the extent it has been materially prejudiced 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 8. 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 8 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 the Representatives shall have the
right to employ counsel to represent jointly the Representatives and those
other Underwriters and their respective officers, employees and controlling
persons who may be subject to liability arising out of any claim in respect
of which indemnity may be sought by the Underwriters against the Company
under this Section 8 if (i) the employment of such counsel has been
expressly authorized in writing by the Company; (ii) the Company has not
assumed the defense of and employed counsel reasonably satisfactory to the
Representatives within a reasonable time after notice of the commencement
of such action or (iii) the named parties to any such action or proceeding
(including impleaded parties) include both an indemnified party and the
Company and such indemnified party shall have been advised in writing by
counsel that there may be one or more legal defenses available to such
indemnified party, which are different from or additional to those
available to the Company, and such counsel's representation of such
indemnified party and the Company in such action or proceeding would give
rise to a conflict of interest which would make it improper for such
counsel to represent both the indemnified party and the Company (in which
case the Company shall not have the right to assume the defense of such
action or proceeding on behalf of such indemnified party). The Company
shall not, in connection with any one such action or proceeding, or
separate but substantially similar or related actions or proceedings in the
same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than
one separate firm for the Underwriters and all such indemnified parties (in
addition to any local counsel), which firm will be designated by the
Representatives, as representative of the Underwriters, and the Company
shall reimburse all such reasonable fees and expenses as they are billed.
No indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld),
settle or compromise or consent to the entry of any judgment with respect
to any pending or threatened claim, action, suit or proceeding in respect
of which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with the
consent of the indemnifying party or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify
and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall
for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein,
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 which 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 this Agreement
(before deducting expenses) received by the Company, on the one hand, and
the total underwriting discounts and commissions received by the
Underwriters with respect to the Securities purchased under this Agreement,
on the other hand, bear to the total gross proceeds from the offering of
the Securities under this Agreement, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault shall be determined
by reference to whether the 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 the Underwriters, the
intent of the parties and their relative 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 contributions pursuant to this Section 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 which 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
shall be deemed to include, for purposes of this Section 8(d), any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 8(d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Securities underwritten by it and distributed to the public was
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise paid or become liable to pay by reason of any
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 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 8(d)
are several in proportion to their respective underwriting obligations and
not joint.
(e) The Underwriters severally confirm and the Company
acknowledges that the statements with respect to the public offering of the
Securities by the Underwriters set forth on the cover page of, and the
statements concerning over- allotments and the concession and reallowance
figures appearing under the caption "Underwriting" in, the Prospectus are
correct and constitute the only information concerning such Underwriters
furnished in writing to the Company by or on behalf of the Underwriters
specifically for inclusion in the Registration Statement and the
Prospectus.
SECTION 9. Defaulting Underwriters.
If, on any Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Underwriters shall be obligated to purchase the Securities
which the defaulting Underwriter agreed but failed to purchase on such
Delivery Date in the respective proportions which the number of Firm
Securities set opposite the name of each remaining non-defaulting
Underwriter in Schedule 1 hereto bears to the total number of Firm
Securities set opposite the names of all the remaining non-defaulting
Underwriters in Schedule 1 hereto; provided, however, that the remaining
non-defaulting Underwriters shall not be obligated to purchase any of the
Securities on such Delivery Date if the total number of Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase on
such date exceeds 9.09% of the total number of Securities to be purchased
on such Delivery Date, and any remaining non-defaulting Underwriter shall
not be obligated to purchase more than 110% of the number of Securities
which it agreed to purchase on such Delivery Date pursuant to the terms of
Section 3. If the foregoing maximums are exceeded, the remaining
non-defaulting Underwriters, or those other underwriters satisfactory to
the Representatives and the Company who so agree, shall have the right, but
shall not be obligated, to purchase, in such proportion as may be agreed
upon among them, all the Securities to be purchased on such Delivery Date.
If the remaining Underwriters or other underwriters satisfactory to the
Representatives and the Company do not elect to purchase the Securities
which the defaulting Underwriter or Underwriters agreed but failed to
purchase on such Delivery Date, this Agreement (or, with respect to the
Second Delivery Date, the obligation of the Underwriters to purchase, and
of the Company to sell, the Option Securities) 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 6 and 11. As used in this
Agreement, the term "Underwriter" includes, for all purposes of this
Agreement unless the context requires otherwise, any party not listed in
Schedule 1 hereto who, pursuant to this Section 9, purchases Securities
which a defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company for damages caused by its default.
If other underwriters are obligated or agree to purchase the Securities of
a defaulting or withdrawing Underwriter, either the Representatives or the
Company may postpone the Delivery Date 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.
SECTION 10. Termination. The obligations of the Underwriters
hereunder may be terminated by the Representatives by notice given to and
received by the Company prior to delivery of and payment for the Firm
Securities if, prior to that time, any of the events described in Sections
7(j), 7(k) or 7(l), shall have occurred or if the Underwriters shall
decline to purchase the Securities for any reason permitted under this
Agreement.
SECTION 11. Reimbursement of Underwriters' Expenses. If the
Company shall fail to tender the Securities for delivery to the
Underwriters by reason of any failure, refusal or inability on the part of
the Company to perform any agreement on its part to be performed, or
because any other condition of the Underwriters' obligations hereunder
required to be fulfilled by the Company is not fulfilled, the Company will
reimburse the Underwriters for all reasonable out-of-pocket expenses
(including fees and disbursements of counsel) incurred by the Underwriters
in connection with this 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
9 by reason of the default of one or more Underwriters, the Company shall
not be obligated to reimburse any defaulting Underwriter on account of
those expenses.
SECTION 12. Notices, Etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Attention: Xxxxxx Xxxx, Managing Director (fax no.: (212)
000-0000) and confirmed to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, at 4 World Xxxxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx,
00000;
(b) if 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: General Counsel (Fax: (000) 000-0000);
provided, however, that any notice to an Underwriter pursuant to Section
8(c) shall be delivered or sent by mail, telex or facsimile transmission to
such Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto
by the Representatives upon request. 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 Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated on behalf of the Representatives.
SECTION 13. 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. This Agreement
and the terms and provisions hereof are for the sole benefit of only those
persons, except that (A) the representations, warranties, indemnities and
agreements of the Company contained in this Agreement shall also be deemed
to be for the benefit of the person or persons, if any, who control any
Underwriter within the meaning of Section 15 of the Securities Act and (B)
the indemnity agreement of the Underwriters contained in Section 8(b) of
this Agreement shall be deemed to be for the benefit of directors of the
Company, officers of the Company who have signed the Registration Statement
and any person controlling the Company within the meaning of Section 15 of
the Securities Act. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to in this
Section 13, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
SECTION 14. Survival. The respective indemnities, representations,
warranties and agreements of the Company and the Underwriters contained in
this Agreement or made by or on behalf on them, respectively, pursuant to
this Agreement, shall survive the delivery of and payment for the Stock and
shall remain in full force and effect, regardless of any investigation made
by or on behalf of any of them or any person controlling any of them.
SECTION 15. Definition of the Terms "Business Day" and
"Subsidiary". For purposes of this Agreement, (a) "business day" means each
Monday, Tuesday, Wednesday, Thursday or Friday which is not a day on which
banking institutions in New York are generally authorized or obligated by
law or executive order to close and (b) "subsidiary" has the meaning set
forth in Rule 405 of the Rules and Regulations.
SECTION 16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK.
SECTION 17. Counterparts. This Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the
executed counterparts shall each be deemed to be an original but all such
counterparts shall together constitute one and the same instrument.
SECTION 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.
If the foregoing correctly sets forth the agreement between the
Company and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
THE XXXXXXXX COMPANIES, INC.
By /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Treasurer
Accepted:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
XXXXXXX XXXXX BARNEY INC.
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
By /s/ Xxxx Xxxxx Parish
---------------------------------
Authorized Representative
SCHEDULE 1
Number of Firm
Underwriters Securities to be Purchased
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated........................ 18,000,000
Xxxxxxx Xxxxx Barney Inc..................... 18,000,000
Banc of America Securities LLC............... 4,500,000
Credit Suisse First Boston Corporation....... 4,500,000
Xxxxxx Brothers Inc.......................... 4,500,000
Mizuho International plc..................... 4,500,000
BMO Xxxxxxx Xxxxx Corp....................... 480,000
Barclays Bank PLC............................ 480,000
CIBC World Markets Corp...................... 480,000
Commerzbank Capital Markets Corp............. 480,000
Credit Lyonnais Securities (USA) Inc......... 480,000
RBC Xxxx Xxxxxx Inc.......................... 480,000
The Royal Bank of Scotland plc............... 480,000
Scotia Capital (USA) Inc..................... 480,000
TD Securities (USA) Inc. .................... 480,000
-----------
Total........................................ 40,000,000
----------
SCHEDULE 2
Significant Subsidiaries
Xxxxxxxx Gas Pipeline Company, LLC
Transcontinental Gas Pipe Line Corporation
Xxxxxxxx Gas Pipelines Central, Inc.
Northwest Pipeline Corporation
Texas Gas Transmission Corporation
Kern River Gas Transmission Company
Xxxxxxxx Energy Services, LLC
Xxxxxxxx Energy Marketing & Trading Company
