EXHIBIT 1.3
XXXXXX XXXXXX, INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
January 31, 2003
Xxxxxx Xxxxxx, Inc., a Kansas corporation (the "Company"), proposes to
issue and sell from time to time certain of its securities, including its senior
debt securities and subordinated debt securities ("Debt Securities") and its
common stock ("Equity Securities") registered under the Securities Act of 1933,
as amended (the "Securities Act"), as set forth in Section 3. The Debt
Securities are to be issued under either a senior indenture or subordinated
indenture, respectively, each dated as of January 31, 2003, as supplemented and
amended (each an "Indenture"), between the Company and Wachovia Bank, National
Association, as Trustee (the "Trustee").
From time to time, the Company may enter into one or more underwriting
agreements that provide for the sale of certain of the Debt Securities or Equity
Securities to the underwriter or several underwriters named therein (the
"Underwriters"). The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement"). The
Underwriting Agreement, including the provisions hereof incorporated therein by
reference, is herein referred to as this "Agreement."
1. Sale and Purchase of the Securities. On the basis of the
representations, warranties and agreements herein contained, the Company
proposes to issue and sell (i) the Debt Securities in one or more series, which
series may vary as to their terms (including, but not limited to, interest rate,
maturity, any redemption provisions and any sinking fund requirements), all of
such terms for any particular series being determined at the time of sale, or
(ii) Equity Securities. All or a portion of a particular series of the Debt
Securities or the Equity Securities will be purchased by the Underwriters for
resale upon terms of offering determined at the time of sale. The securities so
to be purchased in any such offering are hereinafter referred to as the
"Purchased Securities," and any firm or firms acting as representatives of such
Underwriters are hereinafter referred to as the "Representatives." If with
respect to the Purchased Securities such Representatives are acting on behalf of
the Underwriters, references herein to the Underwriters (or a majority in
interest thereof) or the Representatives in the alternative shall be deemed to
refer only to the Representatives. The term "Underwriters' Securities" means
Debt Securities which are Purchased Securities other than Contract Securities.
The term "Contract Securities" means Debt Securities which are Purchased
Securities, if any, to be purchased pursuant to delayed delivery contracts
referred to below.
If this Agreement provides for sales of Debt Securities pursuant to delayed
delivery contracts, the Company hereby authorizes the Underwriters to solicit
offers to purchase Contract Securities on the terms and subject to the
conditions set forth in the Prospectus (as hereinafter defined) pursuant to
delayed delivery contracts substantially in the form of Schedule I attached
hereto (the "Delayed Delivery Contracts") but with such changes therein as the
Company may authorize or approve. Delayed Delivery Contracts are to be with
institutional investors approved
by the Company and of the types set forth in the Prospectus. On the Closing Date
(as hereinafter defined), the Company will pay the Underwriters in immediately
available funds the fee set forth in the Underwriting Agreement in respect of
the principal amount of Contract Securities. The Underwriters will not have any
responsibility in respect of the validity or the performance of any Delayed
Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the Contract Securities shall be deducted from the Debt
Securities to be purchased by the several Underwriters and the aggregate
principal amount of Debt Securities to be purchased by each Underwriter shall be
reduced pro rata in proportion to the principal amount of Debt Securities set
forth opposite each Underwriter's name in the Underwriting Agreement, except to
the extent that the Representatives, if any, determine that such reduction shall
be otherwise and so advise the Company.
The obligations of the Underwriters under this Agreement are several and
not joint.
2. Payment and Delivery. The closing of the purchase and sale of the
Purchased Securities or, if this Agreement provides for sales of Debt Securities
pursuant to Delayed Delivery Contracts, the Underwriters' Securities, shall take
place at the offices of counsel for the Company, on the date or dates and at the
time or times specified in this Agreement, each of which date and time may be
postponed for not more than ten business days by agreement between a majority in
interest of the Underwriters or the Representatives and the Company (each such
date and time of delivery and payment for the Purchased Securities or, if this
Agreement provides for sales of Debt Securities pursuant to Delayed Delivery
Contracts, the Underwriters' Securities, is hereinafter referred to as the
"Closing Date"), except that physical delivery of the Purchased Securities may
be made by or on behalf of the Company through the offices of The Depository
Trust Company or the Trustee, if the Purchased Securities are Debt Securities,
or through the offices of The Depository Trust Company or any transfer agent if
the Purchased Securities are Equity Securities. Delivery by the Company of the
Purchased Securities or, if this Agreement provides for sales of Debt Securities
pursuant to Delayed Delivery Contracts, the Underwriters' Securities, shall be
made against payment by or on behalf of the Underwriters or the Representatives
of the purchase price therefor by wire transfer of immediately available funds
to a bank account designated by the Company.
Unless otherwise specified by the Underwriters or the Representatives, the
Purchased Securities or, if this Agreement provides for sales of Debt Securities
pursuant to Delayed Delivery Contracts, the Underwriters' Securities, shall be
registered in the name of Cede & Co. If the Underwriters or Representatives in
fact choose to specify otherwise, the Purchased Securities or, if this Agreement
provides for sales of Debt Securities pursuant to Delayed Delivery Contracts,
the Underwriters' Securities, shall be registered in such names and shall be in
such denominations as the Underwriters or the Representatives shall request at
least one full business day prior to the Closing Date and, if requested, shall
be made available to the Underwriters or Representatives for checking and
packaging at least one full business day prior to the Closing Date. Unless
otherwise specified by the Underwriters or the Representatives, Debt Securities
shall be in definitive global form without coupons.
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3. Registration Statement and Prospectus; Public Offering. The Company
has filed with the Securities and Exchange Commission (the "Commission"),
pursuant to the Securities Act and the rules and regulations adopted by the
Commission thereunder (the "Rules"), a registration statement or statements on
Form S-3, including a prospectus, relating to the Debt Securities and the Equity
Securities, and such registration statement has or such registration statements
have become effective. Such registration statement or statements referred to in
the first paragraph of the Underwriting Agreement, including financial
statements, exhibits and Incorporated Documents (as hereinafter defined), as
amended to the date of this Agreement, is or are hereinafter referred to as the
"Registration Statement," and the prospectus or prospectuses included in the
Registration Statement or deemed, pursuant to Rule 429 under the Securities Act,
to relate to the Registration Statement, as proposed to be supplemented by a
prospectus supplement (including any preliminary prospectus supplement) relating
to any Purchased Securities to be filed pursuant to Rule 424 under the
Securities Act, is or are hereinafter referred to as the "Prospectus." Any
reference herein to the Registration Statement or Prospectus shall be deemed to
include all documents incorporated, or deemed to be incorporated, therein by
reference pursuant to the requirements of Item 12 of Form S-3 under the
Securities Act (the "Incorporated Documents"). For purposes of this Agreement,
all references to the Registration Statement, any preliminary prospectus, the
Prospectus or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system (XXXXX), which XXXXX copy is
substantially identical to the other copies of such material, except to the
extent permitted by Regulation S-T.
The Company understands, and if this Agreement provides for sales by one or
more Selling Stockholders, each Selling Stockholder understands, that the
Underwriters propose to make a public offering of their respective portions of
the Purchased Securities, as set forth in and pursuant to the Prospectus
relating thereto.
4. Representations and Warranties.
(a) The Company represents and warrants to each Underwriter that:
(i) The Company has reasonable grounds to believe that it meets
the requirements for the use of Form S-3 under the Securities Act;
(ii) The Registration Statement, at the time it became effective,
and the prospectus contained therein, complied, and on the date of the
Underwriting Agreement and the Closing Date and when any
post-effective amendment to the Registration Statement becomes
effective or any supplement to such prospectus is filed with the
Commission, the Registration Statement, the Prospectus and any such
amendment or supplement, respectively, will comply, in all material
respects with the applicable requirements of the Securities Act and
the Rules; the Incorporated Documents, when they were or are filed
with the Commission, conformed or will conform as of their respective
dates in all material respects with the applicable requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
the applicable rules and regulations adopted by the Commission
thereunder; the Indenture complied and will comply in all
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material respects with the requirements of the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"); and each part of the
Registration Statement and any amendment thereto, at the time it
became effective, and the Prospectus and any amendment or supplement
thereto, at the time it was filed with the Commission pursuant to Rule
424 under the Securities Act, when such part became effective, did not
and will not contain an untrue statement of a material fact or omit to
a state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that this representation
and warranty does not apply to (i) statements or omissions in the
Registration Statement or Prospectus (or in amendments or supplements
thereto) made in reliance upon information furnished in writing to the
Company by any Underwriter or the Representatives on behalf of any
Underwriter or by any Selling Stockholder expressly for use therein,
or (ii) that part of the Registration Statement which shall constitute
the Statement of Eligibility and Qualification of the Trustee, under
the Trust Indenture Act on Form T-1, except statements or omissions in
such Statement made in reliance upon information furnished in writing
to the Trustee on behalf of the Company for use therein;
(iii) The consolidated financial statements included in the
Registration Statement and Prospectus present fairly the financial
position of the Company and its consolidated subsidiaries as of the
dates shown and their results of operations, stockholders' equity and
cash flows for the periods shown, and, except as otherwise disclosed
in the Prospectus, such financial statements have been prepared in
conformity with the generally accepted accounting principles in the
United States applied on a consistent basis; any schedules included in
the Registration Statement present fairly the information required to
be stated therein; and if pro forma financial statements are included
in the Registration Statement and Prospectus, the assumptions used in
preparing the pro forma financial statements included in the
Registration Statement and the Prospectus provide a reasonable basis
for presenting the significant effects directly attributable to the
transactions or events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro
forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement
amounts;
(iv) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Kansas, with all necessary corporate power and authority to own its
properties and conduct its business as described in the Prospectus and
has been duly qualified as a foreign corporation for the transaction
of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, except where the failure
to be so qualified would not individually or in the aggregate have a
material adverse effect on the consolidated financial condition,
results of operations or business of the Company and its subsidiaries,
taken as a whole (a "Material Adverse Effect");
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(v) All of the outstanding shares of capital stock or limited
liability company interests, as applicable, of each of the Company's
significant subsidiaries, as defined in the rules and regulations of
the Commission under the Securities Act and Exchange Act (the
"Significant Subsidiaries") have been duly and validly authorized and
issued and are fully paid and (except as required to the contrary by
the Delaware Limited Liability Company Act) non-assessable, and are
(unless otherwise stated on a Schedule to this Agreement) owned by the
Company directly or indirectly through one or more wholly-owned
subsidiaries, free and clear of any lien, encumbrance, security
interest, equity or charge (except for such liens, encumbrances,
security interests, equities or charges as are not, individually or in
the aggregate, material to such interest ownership or as described in
the Prospectus);
(vi) Each of the Significant Subsidiaries has been duly formed or
incorporated and is validly existing as a corporation or limited
liability company, as the case may be, in good standing under the laws
of the jurisdiction in which it is chartered or organized, with full
entity power and authority to own or lease, as the case may be, and to
operate its properties and conduct its business as described in the
Prospectus, and is duly qualified to do business as a corporation or
limited liability company, as the case may be, and is in good standing
under the laws of each jurisdiction which requires such qualification,
other than any jurisdiction where the failure to be so qualified would
not, individually or in the aggregate, have a Material Adverse Effect;
(vii) Kinder Xxxxxx X.X., Inc. a Delaware corporation (the
"General Partner") is the sole general partner of Xxxxxx Xxxxxx Energy
Partners, L.P., a Delaware limited partnership (the "Partnership");
the General Partner owns a general partner interest in the
Partnership; such general partner interest is duly authorized by the
Agreement of Limited Partnership, as amended, of the Partnership and
was validly issued to or acquired by the General Partner; the General
Partner owns such general partner interest free and clear of all
liens, encumbrances, security interests, equities or charges (except
for such liens, encumbrances, security interests, equities or charges
as are not, individually or in the aggregate, material to such
ownership or as described in the Prospectus);
(viii) The Company has all necessary corporate power and
authority to authorize, issue and sell the Purchased Securities as
contemplated by this Agreement; this Agreement, and, if the Purchased
Securities are Debt Securities, any Delayed Delivery Contracts, have
been duly authorized, executed and delivered by the Company;
(ix) If the Purchased Securities are Debt Securities, the
Indenture has been duly authorized and has been duly qualified under
the Trust Indenture Act; the Purchased Securities have been duly
authorized; and when the Purchased Securities are delivered and paid
for pursuant to this Agreement on the Closing Date or pursuant to
Delayed Delivery Contracts, the Indenture will have been duly executed
and delivered, such Purchased Securities will be duly executed,
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authenticated, issued and delivered and will conform in all material
respects to the description thereof contained in the Prospectus; and
the Indenture and such Purchased Securities will constitute valid and
legally binding obligations of the Company, enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles;
(x) If the Purchased Securities are Equity Securities, the
Purchased Securities have been duly and validly authorized and when
issued and delivered against payment therefore pursuant to this
Agreement on the Closing Date, such Purchased Securities will be
validly issued, fully paid and non-assessable and will conform in all
material respects to the description thereof contained in the
Prospectus; and the stockholders of the Company have no preemptive
rights with respect to the Purchased Securities;
(xi) The execution, delivery and performance of the Indenture (if
the Purchased Securities are Debt Securities), this Agreement, and any
Delayed Delivery Contracts, and the issuance and sale of the Purchased
Securities, and, if the Purchased Securities are Debt Securities,
compliance with the terms and provisions thereof, will not result in a
breach or violation of any of the terms and 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 the Significant Subsidiaries is a party or by which the
Company or any of the Significant Subsidiaries is bound or to which
any of the property of the Company or the property of any of the
Significant Subsidiaries is subject, except where any such foregoing
occurrence will not prevent the consummation of the transactions
contemplated herein or would not have a Material Adverse Effect, nor
will such action result in any violation of the provisions of the
certificate of incorporation, bylaws or other formation document, as
the case may be, of the Company or any of the Significant
Subsidiaries, or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of the Significant Subsidiaries or any of the
properties of any such entities, and no consent, approval,
authorization, order, registration or qualification of or with any
court or governmental agency or body having jurisdiction over the
Company or any of the Significant Subsidiaries or any of the
properties of such entities is required for the issuance and sale of
the Purchased Securities by the Company, except such as have been
obtained or made under the Securities Act, and if the Purchased
Securities are Debt Securities, the Trust Indenture Act, and such
consents, approvals, authorizations, registrations or qualifications
as may be required under the state securities or Blue Sky laws;
(xii) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject which, if determined
adversely to such entity, would be reasonably likely to, individually
or in the aggregate, have a Material Adverse
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Effect; and, to the Company's knowledge, no such proceedings are
threatened or contemplated;
(xiii) Except as disclosed in the Prospectus, none of the Company
or any of its subsidiaries has violated any federal or state law or
regulation relating to the protection of human health or the
environment except for any violations and remedial actions as would
not be reasonably likely to, individually or in the aggregate, have a
Material Adverse Effect;
(xiv) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus
there has been no change, nor any development or event involving a
prospective change, that would have a Material Adverse Effect;
(xv) Each of the Company and the Significant Subsidiaries owns or
leases all properties as are necessary to the conduct of its
operations as described in the Prospectus, except where the failure to
own or lease any of such properties would not individually or in the
aggregate, have a Material Adverse Effect;
(xvi) The Company is, and after giving effect to the offering and
sale of the Purchased Securities and the application of the proceeds
thereof as described in the Prospectus, will be, exempt from
regulation as (i) a "holding company" or a "subsidiary company" of a
"holding company" thereof within the meaning of the Public Utility
Holding Company Act of 1935, as amended, or (ii) an "investment
company," as defined in the Investment Company Act of 1940, as
amended; and
(xvii) None of the Company or any of the Significant Subsidiaries
is involved in any labor dispute and, to the knowledge of the Company,
no such dispute has been threatened, except for such disputes as would
not, individually or in the aggregate have a Material Adverse Effect.
(b) If this Agreement provides for sales by one or more Selling
Stockholders, each Selling Stockholder severally represents and warrants to
each Underwriter that such Selling Stockholder has (i) good and valid title
to, and full right, power and authority to convert, convertible securities
of the Company which are convertible into at least the number of shares of
Purchased Securities to be sold by it pursuant to this Agreement; and
immediately after the execution of this Agreement such Selling Stockholder
will convert into Purchased Securities at least such number of convertible
securities; and upon such conversion and on each Closing Date such Selling
Stockholder will have good and valid title to the shares of the Purchased
Securities to be sold by such Selling Stockholder or (ii) has and on each
Closing Date will have good and valid title to the shares of Purchased
Securities to be sold by such Selling Stockholder. Such Selling Stockholder
has full right, power and authority to enter into this Agreement and to
sell, assign, transfer and deliver the shares of the Purchased Securities
to be sold by such Selling Stockholder hereunder; and upon the delivery of
and payment for the Purchased Securities hereunder the several Underwriters
will acquire good and valid title to the shares of the Purchased Securities
to be sold by such Selling Stockholder.
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5. Conditions of the Underwriters' Obligations. The obligations of the
Underwriters hereunder to purchase and pay for the Purchased Securities or, if
this Agreement provides for sales of Debt Securities pursuant to Delayed
Delivery Contracts, the Underwriters' Securities, are subject to the following
conditions:
(a) Promptly upon the execution of this Agreement by the Company (or
at such later time acceptable to the Representatives, or if there are none,
such firm as may be designated by a majority in interest of the
Underwriters) and on the Closing Date, the Representatives or such
designated firm shall have received from the independent accountants of the
Company who have certified the financial statements of the Company and its
subsidiaries included or incorporated by reference in the Registration
Statement signed letters dated the respective dates of delivery, in form
and substance satisfactory to the Underwriters or the Representatives.
(b) No stop order suspending the effectiveness of the Registration
Statement under the Securities Act shall be in effect and no proceedings
for such purpose shall be pending before or threatened by the Commission
and any requests for additional information on the part of the Commission
(to be included in the Registration Statement or the Prospectus or
otherwise) shall have been complied with to the reasonable satisfaction of
the Underwriters or the Representatives.
(c) Subsequent to the execution of this Agreement, there shall not
have been any material change in the capital stock or long-term debt of the
Company or any material adverse change in the general affairs, management,
financial position or results of operations of the Company and its
subsidiaries taken as a whole, whether or not arising in the ordinary
course of business, in each case other than as set forth in or contemplated
by the Registration Statement and Prospectus, if in the reasonable judgment
of a majority in interest of the Underwriters or of the Representatives any
such change makes it impracticable or inadvisable to consummate the sale
and delivery of the Purchased Securities or, if this Agreement provides for
sales of Debt Securities pursuant to Delayed Delivery Contracts, the
Underwriters' Securities, by the Underwriters as contemplated in the
Prospectus.
(d) Subsequent to the execution of this Agreement, there shall not
have occurred any of the following (i) a suspension or material limitation
in trading in securities generally on the New York Stock Exchange; (ii) a
suspension in trading in the Company's securities on the New York Stock
Exchange; (iii) a general moratorium on commercial banking activities
declared by either Federal or New York authorities; or (iv) the outbreak or
escalation of major hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the
effect of any such event specified in this clause (iv) in the reasonable
judgment of a majority in interest of the Underwriters or of the
Representatives makes it impracticable or inadvisable to proceed with the
public offering or the sale of and payment for the Purchased Securities.
(e) The representations and warranties of the Company contained herein
shall be true and correct on and as of the Closing Date and the Company
shall have performed
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all covenants and agreements herein contained to be performed on its part
at or prior to the Closing Date.
(f) The Underwriters or Representatives shall have received on the
Closing Date a certificate, dated the Closing Date, of the Chief Executive
Officer, the President, any Vice President or the Vice President, Treasurer
and Chief Financial Officer of the Company, which shall certify that (i) no
order suspending the effectiveness of the Registration Statement or the
qualification of the Indenture has been issued and, to the knowledge of
such officer, no proceedings for such purpose are pending before or
threatened by the Commission, (ii) the representations and warranties of
the Company contained herein are true and correct on and as of the Closing
Date, and (iii) the Company has performed all covenants and agreements
herein contained to be performed on its part at or prior to the Closing
Date.
(g) The Underwriters or the Representatives shall have received on the
Closing Date from Xxxxxxxxx & Xxxxxxxxx, L.L.P., counsel for the Company,
an opinion, dated the Closing Date, substantially to the effect as set
forth in Schedule II hereto.
(h) The Underwriters or the Representatives shall have received on the
Closing Date from counsel for the Underwriters an opinion dated the Closing
Date, with respect to the Company, the Indenture, the Purchased Securities
or, if this Agreement provides for sales of Debt Securities pursuant to
Delayed Delivery Contracts, the Underwriters' Securities, the Registration
Statement and Prospectus and this Agreement. Such opinion shall also
include language substantially to the effect of the penultimate paragraph
of Schedule II hereto. The Company and, if this Agreement provides for
sales by Selling Stockholders, each Selling Stockholder shall have
furnished to counsel for the Underwriters such documents as they may
reasonably request for the purpose of enabling them to render such
opinions.
(i) Subsequent to the date of this Agreement, no downgrading shall
have occurred in the rating accorded the Company's debt securities or
preferred stock by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the Securities Act, nor shall there have been any
public announcement, beyond what it had announced prior to the date of this
Agreement, that any such organization has under surveillance or review its
ratings of any debt securities or preferred stock of the Company (other
than an announcement with positive implication of a possible upgrading, and
no implication of a possible downgrading of such rating).
(j) If this Agreement provides for sales by Selling Stockholders, the
Underwriters or Representatives shall have received on the Closing Date a
certificate, dated the Closing Date, of the President or any Vice President
of each Selling Stockholder, which shall certify that (i) the
representations and warranties of such Selling Stockholder contained herein
are true and correct on and as of the Closing Date, and (ii) such Selling
Stockholder has performed all covenants and agreements herein contained to
be performed on its part at or prior to the Closing Date.
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(k) If this Agreement provides for sales by Selling Stockholders, the
Underwriters or Representatives shall have received on the Closing Date
from counsel for each Selling Stockholder, an opinion, dated the Closing
Date, substantially to the effect as set forth in Schedule III hereto.
6. Covenants. The Company and, if this Agreement provides for sales by
Selling Stockholders, each Selling Stockholder as to paragraphs (a), (c), (h),
(k), (l) and (m), covenants and agrees with the several Underwriters as follows:
(a) To advise the Underwriters or the Representatives promptly of any
amendment or supplement of the Registration Statement or the Prospectus
which is proposed to be filed and not to effect such amendment or
supplement in a form to which the Underwriters or the Representatives
reasonably object.
(b) To furnish to each of the Underwriters or the Representatives and
to the counsel for the Underwriters, one copy of the Registration Statement
filed pursuant to XXXXX, including exhibits and Incorporated Documents,
relating to the Debt Securities and the Equity Securities in the form it
became effective and of all amendments thereto, including exhibits; and to
each such firm and counsel, copies of each preliminary prospectus
supplement and Prospectus and any amendment or supplement thereto relating
to the Debt Securities and the Equity Securities.
(c) As soon as it is advised thereof, to advise the Underwriters or
the Representatives (i) of the initiation or threatening by the Commission
of any proceedings for the issuance of any order suspending the
effectiveness of the Registration Statement or the qualification of the
Indenture or preventing or suspending the use of any preliminary prospectus
supplement, (ii) of receipt by it or any representative or attorney of it
of any other communication from the Commission relating to the Company, any
Selling Stockholders, the Registration Statement or the Prospectus, or
(iii) suspension of qualification of the Purchased Securities for offering
or sale in any jurisdiction. The Company will make every reasonable effort
to prevent the issuance of an order suspending the effectiveness of the
Registration Statement or the qualification of the Indenture, and if any
such order is issued, to obtain as soon as possible the lifting thereof.
(d) To deliver to the Underwriters or the Representatives, without
charge, as many conformed copies of the Indenture, the Registration
Statement (excluding exhibits but including the Incorporated Documents),
each preliminary prospectus supplement, the Prospectus and all amendments
and supplements to such documents as the Underwriters or the
Representatives may reasonably request.
(e) During such period as a prospectus is required by law to be
delivered by an Underwriter or dealer, to deliver, without charge, to
Underwriters and dealers, at such office or offices as the Underwriters or
the Representatives may designate, as many copies of the Prospectus and any
amendment or supplement thereto as the Underwriters or the Representatives
may reasonably request.
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(f) During the period in which copies of the Prospectus are to be
delivered as provided in paragraph (e) above, if any event occurs 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, not misleading, or
if for any reason it shall be necessary during such same period to file any
document which will be deemed an Incorporated Document in order to comply
with the Exchange Act and the rules and regulations thereunder, forthwith
to prepare, submit to the Underwriters or the Representatives, file with
the Commission and deliver, without charge to the Underwriters either (i)
amendments or supplements to the Prospectus so that the statements in the
Prospectus, as so amended or supplemented, will not be misleading or (ii)
documents which will effect such compliance. Delivery by Underwriters of
any such amendments or supplements to the Prospectus or documents shall not
constitute a waiver of any of the conditions set forth in Section 5 hereof.
(g) To make generally available to the Company's security holders, as
soon as practicable, an earnings statement which satisfies the provisions
of Section 11(a) of the Securities Act.
(h) To cooperate with the Underwriters or the Representatives in
qualifying the Purchased Securities for offer and sale under the securities
or "blue sky" laws of such jurisdictions as the Underwriters or the
Representatives may reasonably request; provided that in no event shall the
Company nor any Selling Stockholder be obligated to qualify to do business
in any jurisdiction where it is not now so qualified, to take any action
which would subject it to service of process in suits, other than those
arising out of the offering or sale of the Purchased Securities, in any
jurisdiction where it is not now so subject, qualify in any jurisdiction as
a broker-dealer or subject itself to any taxing authority where it is not
now so subject.
(i) Unless otherwise specified, to endeavor to obtain as promptly as
practicable the listing of the Purchased Securities on the New York Stock
Exchange and, if the Purchased Securities are of a class or series of
securities which is already listed on the New York Stock Exchange or any
other stock exchange, to effect the listing of the Purchased Securities on
such stock exchanges prior to the Closing Date, subject to notice of
issuance.
(j) During the period of five years from the date hereof, to supply to
the Representatives, if any, and to each other Underwriter who may so
request in writing, copies of such financial statements and other periodic
and special reports as the Company may from time to time distribute
generally to its lenders or to the holders of any class of its securities
registered under Section 12 of the Exchange Act and to furnish to the
Underwriters or the Representatives a copy of each annual or other report
it shall be required to file with the Commission.
(k) To pay all of its own expenses incurred in connection with the
performance of its obligations under this Agreement, and the Company will
pay, or reimburse if paid by the Underwriters or the Representatives,
whether or not the
-11-
transactions contemplated hereby are consummated or this Agreement is
terminated, all reasonable costs and expenses incident to the performance
of the obligations of the Company under this Agreement, including those
relating to (i) the preparation, printing and filing of the Registration
Statement and exhibits thereto, each preliminary prospectus, any
preliminary prospectus supplement, the Prospectus, all amendments and
supplements to the Registration Statement and the Prospectus, the printing
of the Indenture and the printing of this Agreement (including any
Agreement Among Underwriters), (ii) the issuance, preparation and delivery
of the Purchased Securities to the Underwriters, and if applicable, those
entering into Delayed Delivery Contracts with the Company, including the
costs and expenses of any Trustee, Registrar, Transfer Agent and any agent
thereof, including any reasonable fees and disbursements of counsel
therefor, (iii) the registration or qualification of the Purchased
Securities for offer and sale under the securities or "blue sky" laws of
the various jurisdictions referred to in paragraph (h) above, including the
reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and the preparation and printing of legal investment
and preliminary and supplementary "blue sky" memoranda, (iv) the furnishing
to the Underwriters and the Representatives, if any, of copies of the
Prospectus and all amendments or supplements to the Prospectus, and of the
several documents required by this Section to be so furnished, including
costs of shipping and mailing, (v) the listing of the Purchased Securities
on any securities exchange, (vi) the rating of the Purchased Securities by
rating agencies, and (vii) the furnishing to the Underwriters and the
Representatives, if any, of copies of all reports and information required
by paragraph (j) above, including costs of shipping and mailing. If a
separate agreement exists between the Company and any Selling Stockholder
which allocates such costs and expenses in a manner different from that set
forth above, such agreement shall control as between the Company and such
Selling Stockholder only, but such agreement shall not modify the
obligations of the Company and the Selling Stockholder to the Underwriters
to cause the payment of costs and expenses as set forth above.
(l) During the period beginning on the date of this Agreement and
continuing to the date specified in this Agreement, not to, directly or
indirectly, sell, offer to sell, contract to sell, hedge, pledge, grant an
option to purchase, issue any instrument convertible or exchangeable for or
representing the right to receive, or otherwise dispose of any securities
of the Company substantially similar to the Purchased Securities (other
than commercial paper issued in the ordinary course of business), without
the prior written consent of a majority in interest of the Underwriters or
the Representatives.
(m) If this Agreement provides for sales by Selling Stockholders, each
Selling Stockholder agrees to deliver to the Underwriters or the
Representatives on or prior to the Closing Date a properly completed and
executed United States Treasury Department Form W-9 (or other applicable
form or statement specified by Treasury Department regulations in lieu
thereof).
-12-
7. Indemnification.
(a) The Company will indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, as
follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or the omission
or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 7(e) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 7(d) hereof, the fees and disbursements
of counsel chosen by the Underwriters), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above; provided, however, that the indemnity set forth in this
Section 7(a) shall not apply to any loss, liability, claim, damage or
expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of any Underwriter expressly for use in the Registration
Statement (or any amendment thereto), or any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto). The foregoing
indemnity with respect to any untrue statement or alleged untrue
statement contained in or omission or alleged omission from a
preliminary prospectus shall not inure to the benefit of the
Underwriter (or any person controlling such Underwriter) from whom the
person asserting any loss, liability, claim, damage or expense
purchased any of the Purchased Securities which are the subject
thereof if the Company shall sustain the burden of proving that such
person was not sent or given a copy of the Prospectus (or the
Prospectus as amended or supplemented) at or prior to the written
confirmation of the sale of such Purchased Securities to such person
and
-13-
the untrue statement contained in or omission from such preliminary
prospectus was corrected in the Prospectus (or the Prospectus as
amended or supplemented) and the Company had previously furnished
copies thereof to such Underwriter.
(b) If this Agreement provides for sales by Selling Stockholders, each
of the Selling Stockholders severally will indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only insofar as losses, liabilities
claims, damages, expenses or actions arise out of or are based upon any
untrue statement or omission or alleged untrue statement or omission which
was made in the Registration Statement, the prospectus or any amendment or
supplement thereto, in reliance on and in conformity with information
furnished in writing to the Company by such Selling Stockholder expressly
for use therein.
(c) Each Underwriter, severally in proportion to its respective
purchase obligation and not jointly, agrees to indemnify and hold harmless
the Company, directors of the Company, the officers of the Company who
signed the Registration Statement, and each person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Underwriter expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(d) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it
in respect of which indemnity may be sought hereunder, but failure to so
notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. In
the case of parties indemnified pursuant to Section 7(a) above, counsel to
the indemnified parties shall be selected by the Underwriters, and, in the
case of parties indemnified pursuant to Section 7(c) above, counsel to the
indemnified parties shall be selected by the Company, provided that if it
so elects within a reasonable time after receipt of such notice, an
indemnifying party, jointly with any other indemnifying parties receiving
such notice, may assume the defense of such action with counsel chosen by
it and approved by the indemnified parties defendant in such action, unless
such indemnified parties reasonably object to such assumption on the ground
that there may be legal defenses available to them which are different from
or in addition to those available to such indemnifying party. If an
indemnifying party assumes the defense of such action, the indemnifying
parties shall not be liable for any fees and expenses of counsel for the
indemnified parties incurred thereafter in connection with such action. An
indemnifying
-14-
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except
with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions
in the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever in respect of which indemnification or contribution
could be sought under this Section 7 or Section 8 hereof (whether or not
the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act
by or on behalf of any indemnified party.
(e) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for reasonable fees
and expenses of counsel, such indemnifying party agrees that it shall be
liable for any settlement of the nature contemplated by Section 7(a)(ii)
effected without its written consent if (i) such settlement is entered into
more than 45 days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice of the
terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed
such indemnified party in accordance with such request prior to the date of
such settlement. Notwithstanding the immediately preceding sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, an
indemnifying party shall not be liable for any settlement of the nature
contemplated by Section 7(a)(ii) effected without its consent if such
indemnifying party (i) reimburses such indemnified party in accordance with
such request to the extent it considers such request to be reasonable and
(ii) provides written notice to the indemnified party substantiating the
unpaid balance as unreasonable, in each case prior to the date of such
settlement.
8. Contribution. If the indemnification provided for in Section 7 hereof
is for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company or the
Selling Stockholder, if any (taking into account the portion of the proceeds of
the offering received by each), on the one hand and the Underwriters on the
other hand from the offering of the Purchased Securities pursuant to this
Agreement or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and the Selling Stockholder, if any, on the
-15-
one hand and of the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Selling Stockholder, if any,
on the one hand and the Underwriters on the other hand in connection with the
offering of the Purchased Securities pursuant to this Agreement shall be deemed
to be in the same respective proportions as the total net proceeds from the
offering of the Purchased Securities pursuant to this Agreement (before
deducting expenses but after deducting the total underwriting commission
received by the Underwriters) received by the Company and the Selling
Stockholder, if any, and the total underwriting commission received by the
Underwriters, in each case as set forth on the cover of the Prospectus, bear to
the aggregate initial public offering price of the Purchased Securities as set
forth on such cover. The relative fault of the Company and the Selling
Stockholder, if any, on the one hand and the Underwriters on the other hand
shall be determined by reference to, among other things, whether any such untrue
or alleged untrue statement of a material fact or omission or alleged omission
to state a material fact relates to information supplied by the Company and the
Selling Stockholder, if any, or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company, the Selling Stockholder, if any, and
the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 8 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to above in this Section 8. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party and
referred to above in this Section 8 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission. Notwithstanding the provisions of this Section 8,
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Purchased Securities underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of any such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 8, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contribution as such Underwriter; each director of
the Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Company; and if this Agreement provides for sales
by Selling Stockholders, each person, if any, who controls a Selling Stockholder
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Selling
Stockholder. The Underwriters' respective obligations to contribute pursuant to
this Section 8 are several in proportion to their respective underwriting
obligations and not joint.
-16-
9. Termination. This Agreement may be terminated by a majority in
interest of the Underwriters or by the Representatives by notifying the Company
at any time at or prior to the Closing Date, if any of the conditions specified
in Section 5 hereof shall not have been fulfilled when and as required by this
Agreement.
If this Agreement is terminated pursuant to any of the provisions hereof,
except as otherwise provided herein, the Company shall not be under any
liability to any Underwriter or any Selling Stockholder and no Underwriter shall
be under any liability to the Company or any Selling Stockholder, except that
(a) if this Agreement is terminated by the Underwriters or the Representatives
because of any failure or refusal on the part of the Company or any Selling
Stockholder to comply with the terms or to fulfill any of the conditions of this
Agreement, the Company and each Selling Stockholder will reimburse the
Underwriters for all reasonable out-of-pocket expenses (including the reasonable
fees and disbursement of their counsel) reasonably incurred by them and (b) no
Underwriter who shall have failed or refused to purchase the Purchased
Securities or, if this Agreement provides for sales of Debt Securities pursuant
to Delayed Delivery Contracts, the Underwriters' Securities, agreed to be
purchased by it hereunder, without some reason sufficient hereunder to justify
its cancellation or termination of its obligations hereunder, shall be relieved
of liability to the Company, any Selling Stockholder or the other Underwriters
for damages occasioned by its default.
10. Default of Underwriters. If one or more of the Underwriters shall fail
(other than for a reason sufficient to justify the termination of this
Agreement) to purchase on the Closing Date the principal amount of Purchased
Securities or, if this Agreement provides for sales of Debt Securities pursuant
to Delayed Delivery Contracts, the Underwriters' Securities, agreed to be
purchased by such Underwriter or Underwriters, the Representatives, or if there
are none, such firm as may be designated by a majority in interest of the
Underwriters may find one or more substitute underwriters to purchase such
Purchased Securities or, if this Agreement provides for sales of Debt Securities
pursuant to Delayed Delivery Contracts, the Underwriters' Securities, or make
such other arrangements as they may deem advisable or one or more of the
remaining Underwriters may agree to purchase such Purchased Securities or, if
this Agreement provides for sales of Debt Securities pursuant to Delayed
Delivery Contracts, the Underwriters' Securities, in such proportions as may be
approved by the Representatives or such designated firm, in each case upon the
terms herein set forth. If no such arrangements have been made within 24 hours
after the Closing Date, and
(a) the aggregate principal amount or number of shares, as the case
may be, of Purchased Securities or, if this Agreement provides for sales of
Debt Securities pursuant to Delayed Delivery Contracts, the Underwriters'
Securities, to be purchased by the defaulting Underwriter or Underwriters
shall not exceed 10% of the total principal amount or number of shares, as
the case may be, of Purchased Securities or, if this Agreement provides for
sales of Debt Securities pursuant to Delayed Delivery Contracts, the
Underwriters' Securities, each of the non-defaulting Underwriters shall be
obligated to purchase such Purchased Securities or, if this Agreement
provides for sales of Debt Securities pursuant to Delayed Delivery
Contracts, the Underwriters' Securities, on the terms herein set forth in
proportion to their respective obligations hereunder, or
-17-
(b) the aggregate principal amount or number of shares, as the case
may be, of Purchased Securities or, if this Agreement provides for sales of
Debt Securities pursuant to Delayed Delivery Contracts, the Underwriters'
Securities, to be purchased by the defaulting Underwriter or Underwriters
shall exceed 10% of the total principal amount or number of shares, as the
case may be, of Purchased Securities or, if this Agreement provides for
sales of Debt Securities pursuant to Delayed Delivery Contracts, the
Underwriters' Securities, the Company shall be entitled to an additional
period of 24 hours within which to find one or more substitute underwriters
satisfactory to the Representatives, or if there are none, to such
designated firm to purchase such Purchased Securities or, if this Agreement
provides for sales of Debt Securities pursuant to Delayed Delivery
Contracts, the Underwriters' Securities, upon the terms set forth herein.
In any such case, either the Representatives, or if there are none, such
designated firm or the Company shall have the right to postpone the Closing Date
for a period of not more than seven business days in order that necessary
changes and arrangements may be effected. If the aggregate principal amount or
number of shares, as the case may be, of the Purchased Securities or, if this
Agreement provides for sales of Debt Securities pursuant to Delayed Delivery
Contracts, the Underwriters' Securities, to be purchased by such defaulting
Underwriters shall exceed 10% of the total principal amount or number of shares,
as the case may be, of Purchased Securities or, if this Agreement provides for
sales of Debt Securities pursuant to Delayed Delivery Contracts, the
Underwriters' Securities, and neither the non-defaulting Underwriters nor the
Company shall make arrangements pursuant to this Section 10 within the period
stated for the purchase of the Purchased Securities or, if this Agreement
provides for sales of Debt Securities pursuant to Delayed Delivery Contracts,
the Underwriters' Securities, which the defaulting Underwriter or Underwriters
agreed to purchase, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter and without liability on the part of the
Company or any Selling Stockholder, except, in each case, as provided in Section
6(k), 7, 8 and 9 hereof. The provisions of this Section 10 shall not in any way
affect the liability of any defaulting Underwriter to the Company, any Selling
Stockholder or the non-defaulting Underwriters arising out of such default. A
substitute underwriter hereunder shall become an Underwriter for all purposes of
this Agreement.
11. Miscellaneous. The reimbursement, indemnification and contribution
agreements contained in Sections 6(k), 7 and 8 hereof and the representations,
warranties, covenants and agreements of the Company and any Selling Stockholder
in this Agreement shall remain in full force and effect regardless of (a) any
termination of this Agreement, (b) any investigation (or any statement as to the
results thereof) made by or on behalf of any Underwriter or any officer,
director or controlling person, or by or on behalf of the Company or any
officer, director or controlling person, or by or on behalf of any Selling
Stockholder or any officer, director or controlling person, and (c) delivery of
and payment for Purchased Securities under this Agreement.
This Agreement has been and is made solely for the benefit of the
Underwriters, any Selling Stockholder and the Company and their respective
permitted successors and assigns, and, to the extent expressed herein, for the
benefit of persons controlling any of the Underwriters, any Selling Stockholder
or the Company, directors and officers of the Company, and their respective
successors and assigns, and no other person, partnership, association or
corporation shall acquire
-18-
or have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include any purchaser of Purchased Securities, Underwriters'
Securities or Contract Securities merely because of such purchase.
In dealings hereunder, the Representatives, if designated, shall act on
behalf of each of the Underwriters, and the parties hereto shall be entitled to
act and rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by such firm as the Representatives may designate to
the Company.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument. Facsimile copies of signatures shall constitute original
signatures for all purposes of this Agreement and any enforcement hereof.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
-19-
SCHEDULE I
DELAYED DELIVERY CONTRACT
__________, 20__
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Xxxxxx Xxxxxx, Inc., a
Kansas corporation (the "Company"), and the Company agrees to sell to the
undersigned $________________ principal amount of the Company's [state title of
issue] (the "Securities"), offered by the Company's Prospectus dated _________,
20__ and Prospectus Supplement dated __________, 20__, receipt of copies of
which are hereby acknowledged, at a purchase price equal to __% of the principal
amount thereof plus accrued interest from ____________, 20__ to the date or
dates for payment and delivery thereof and on the further terms and conditions
set forth in this contract. The undersigned does not contemplate selling
Securities prior to making payment therefor.
The undersigned will purchase from the Company Securities in the principal
amounts and on the delivery date or dates set forth below:
Principal Plus Accrued
Delivery Date Amount Interest From:
------------- --------- --------------
$
$
$
Each such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date".
Payment for the Securities which the undersigned has agreed to purchase on
each Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House funds (available on the next
business day) at the office of _____________, New York, New York, at 10:00 a.m.
(New York time) on the Delivery Date, upon delivery to the undersigned of the
Securities to be purchased by the undersigned on the Delivery Date, in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to the Delivery Date. If no such request is received,
the Securities will be registered in the name of the undersigned and issued in a
denomination equal to the aggregate principal amount of Securities to be
purchased by the Delivery Date.
By the execution hereof, the undersigned represents and warrants to the
Company that (i) all necessary corporate action for the due execution and
delivery of this contract and payment for and purchase of the Securities has
been taken by it, (ii) no further authorization or approval of any governmental
or other regulatory authority is required for such execution, delivery, payment
or purchase, and (iii) its investment in the Securities is not, as of the date
hereof, prohibited
under the laws of any jurisdiction to which the undersigned is subject and which
govern such investment.
The obligation of the undersigned to take delivery of and make payment for
the Securities on the Delivery Date shall be subject to the conditions that (1)
the purchase of Securities to be made by the undersigned shall not at the time
of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above, of such part of the Securities as is to
be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by a copy of the opinion of
counsel for the Company delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other delayed delivery contract shall not relieve the
undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the prior written consent of the other, and any such
attempted assignment shall be void.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first-come, first-served basis.
If this contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding contract, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
THIS CONTRACT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
Yours very truly,
------------------------------------
(Purchaser)
By:
--------------------------------
Name:
Title:
-2-
Accepted:
XXXXXX XXXXXX, INC.
By:
---------------------------
Name:
Title:
------------------------------------
------------------------------------
(Address)
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name, telephone number and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed
are as follows: (Please print.)
Telephone Number
Name (Including Area Code) Dept.
---- --------------------- -----
-3-
SCHEDULE II
[FORM OF OPINION OF XXXXXXXXX & XXXXXXXXX, L.L.P.
TO BE DELIVERED PURSUANT TO SECTION 5(f)]
(i) The Company is validly existing and in good standing as a corporation
under the laws of the state of Kansas and has full corporate power and authority
to own its properties and to conduct its business as such business is described
in the Prospectus;
(ii) The Agreement has been duly authorized, executed and delivered by the
Company;
(iii) If the Purchased Securities are Debt Securities, the Indenture has
been duly authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery thereof by the Trustee, constitutes a
valid and legally binding agreement of the Company enforceable against the
Company in accordance with its terms;
(iv) In the event any of the Purchased Securities are to be purchased
pursuant to Delayed Delivery Contracts, each of such Delayed Delivery Contracts
has been duly authorized, executed and delivered by the Company and, assuming
due authorization, execution and delivery thereof by the purchaser named
therein, constitutes a valid and legally binding agreement of the Company
enforceable against the Company in accordance with its terms;
(v) In the event any of the Purchased Securities are Debt Securities, the
Purchased Securities have been duly authorized by the Company; the Purchased
Securities or, if this Agreement provides for sales of Debt Securities pursuant
to Delayed Delivery Contracts, the Underwriters' Securities delivered on the
Closing Date, when executed by the Company and authenticated by the Trustee, and
issued and delivered, in the manner provided in the Indenture against payment of
the consideration therefor pursuant to the Agreement, will constitute valid and
legally binding obligations of the Company entitled to the benefits of the
Indenture and enforceable against the Company in accordance with their
respective terms; the Contract Securities, if any, when executed by the Company
and authenticated by the Trustee, against payment of the consideration therefore
pursuant to the Delayed Delivery Contracts, and issued and delivered in the
manner provided in the Indenture and Delayed Delivery Contracts will constitute
valid and legally binding obligations of the Company entitled to the benefits of
the Indenture and enforceable against the Company in accordance with their
respective terms;
(vi) In the event any of the Purchased Securities are Equity Securities,
the Purchased Securities delivered on the Closing Date (a) have been duly
authorized and, when issued and delivered against payment of the consideration
therefor pursuant to the Agreement, will be validly issued, fully paid and
nonassessable, and (b) conform as to legal matters in all material respects to
the description thereof under the appropriate captions in the Prospectus, are
approved for listing, subject to official notice of issuance, on the New York
Stock Exchange; and to such counsel's knowledge after due inquiry, the
stockholders of the Company have no preemptive rights with respect to the
Purchased Securities;
(vii) If the Purchased Securities are Debt Securities, the Indenture, the
Debt Securities and the Delayed Delivery Contracts, if any, conform as to legal
matters in all material respects to the descriptions thereof under the
appropriate captions in the Prospectus;
(viii) If the Purchased Securities are Debt Securities, the Indenture has
been qualified under the Trust Indenture Act;
(ix) The Registration Statement has been declared effective under the
Securities Act; any filing of the Prospectus required to the Closing Date
pursuant to Rule 424(b) under the Securities Act has been made in the manner and
within the time period required by Rule 424(b); and, to such counsel's knowledge
after due inquiry, no stop order suspending the effectiveness of the
Registration Statement has been issued under the Securities Act and no
proceedings for that purpose have been instituted or threatened by the
Commission;
(x) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to the Closing
Date, excluding the documents incorporated by reference therein, as of their
respective effective or issue dates (other than the financial statements and
supporting schedules and other financial or accounting data included therein or
omitted therefrom, and the Trustee's Statement of Eligibility on Form T-1 as to
which such counsel need express no opinion) appeared on their face to comply as
to form in all material respects with the requirements of the Securities Act and
the rules and regulations thereunder;
(xi) The documents incorporated by reference in the Prospectus (other than
the financial statements and supporting schedules and other financial or
accounting data included therein or omitted therefrom, as to which such counsel
need express no opinion) when they became effective (if incorporated by
reference to another registration statement) or were filed with the Commission,
as the case may be, appeared on their face to comply as to form in all material
respects with the requirements of the particular form under the Securities Act
or the Exchange Act and the respective rules and regulations thereunder, as
applicable;
(xii) The execution and delivery of the Agreement, and, if the Purchased
Securities are Debt Securities, the Indenture and each of the Delayed Delivery
Contracts, if any, and the consummation of the transactions therein contemplated
will not violate (a) any of the terms or provisions of any indenture, mortgage,
deed of trust or loan agreement or other agreement or instrument filed or
incorporated by reference as an exhibit to the Company's Annual Report on Form
10-K most recently filed with the Commission or under any Form 10-Q or Form 8-K
of the Company filed since the filing of such Annual Report on Form 10-K, (b)
any provision of the articles of incorporation or bylaws of the Company, (c) an
existing obligation of the Company under any existing court or administrative
order, judgment or decree of which such counsel has knowledge after due inquiry,
or (d) any applicable provisions of the federal laws of the United States (based
on the limitations set forth below) or the laws of the state of Texas;
(xiii) No consent, approval, authorization, order, or filing with, any
federal or Texas court or governmental agency or body is required under federal
or Texas law for the consummation by the Company of the transactions
contemplated by the Agreement in connection with the issue and sale of the
Purchased Securities by the Company or, if the Purchased Securities are Debt
Securities, the Indenture, except (a) as may be required under the
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Securities Act and the regulations promulgated thereunder, (b) as may be
required under state securities or Blue Sky laws in connection with the purchase
and distribution of the Purchased Securities by the Underwriters, and (c) such
as the failure to obtain or make would not reasonably be expected, individually
or in the aggregate, to have a Material Adverse Effect;
(xiv) To such counsel's knowledge after due inquiry, and other than as set
forth in the Prospectus, there is no legal or governmental proceeding pending or
threatened against the Company or any Significant Subsidiary which, if
determined adversely to the Company or any Significant Subsidiary, would
individually or in the aggregate reasonably be expected to have a Material
Adverse Effect;
(xv) The Company is not an "investment company" as such term is defined in
the Investment Company Act of 1940, as amended; and
(xvi) The Company is exempt from regulation as a "holding company" under
the Public Utility Holding Company Act of 1935, as amended.
Such counsel may state that in addition to the limitations and
qualifications set forth above, the enforceability of obligations of the Company
under the Debt Securities, the Indenture or the Delayed Delivery Contracts, as
the case may be, is subject to the effect of any applicable bankruptcy
(including, without limitation, fraudulent conveyance and preference),
insolvency, reorganization, rehabilitation, moratorium or similar laws and
decisions relating to or affecting the enforcement of creditors' rights
generally, and to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law), including,
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing, and the possible unavailability of specific performance or injunctive
relief. Such principles are of general application, and in applying such
principles a court, among other things, might decline to order the Company to
perform covenants. Further, such counsel need not express an opinion with
respect to the enforceability of provisions in the Debt Securities, the
Indenture or the Delayed Delivery Contracts (i) that require or relate to the
payment of liquidated damages at a rate or in an amount that a court would
determine in the circumstances under applicable law to be commercially
unreasonable or a penalty or a forfeiture, and (ii) with respect to waiver,
delay, extension or omission of notice or enforcement of rights or remedies,
waivers of defenses or waivers of benefits of stay, extension, moratorium,
redemption, statutes of limitations or other nonwaivable benefits provided by
operation of law. Further, such counsel may state that the enforceability of any
exculpation, indemnification or contribution provisions contained in the
Indenture may be limited by applicable law or public policy.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the relevant federal law
of the United States of America, Texas law, and, with respect to the opinion
expressed in paragraph (iii) and the last two clauses of paragraph (v), the
relevant contract law of the state of New York, and, with respect to the opinion
expressed in paragraph (i), (ii) and (iii) and the first clause of paragraphs
(iv) and (v) and clause (a) of paragraph (vi), the Kansas General Corporation
Code, and that they render no opinion with respect to the state securities or
blue sky laws of any jurisdiction or the law of any other jurisdiction. Such
counsel may note that they are not admitted to the practice of law in the
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state of Kansas. With respect to paragraph (xii), such counsel may also state
that they render no opinion with respect to the anti-fraud provisions of the
federal securities laws.
Such counsel may state that whenever its opinion is based on factual
matters that are "to its knowledge after due inquiry" such counsel has relied
exclusively on certificates of officers (after discussion of the contents
thereof with such officers) of the Company or certificates of others as to the
existence or nonexistence of the factual matters upon which such opinion is
predicated. Such counsel shall state that it has no reason to believe, however,
that any such certificate is untrue or inaccurate in any material respect.
Such counsel may also state that, because the primary purpose of such
counsel's engagement was not to establish or confirm factual matters or
financial or accounting matters and because of the wholly or partially non-legal
character of many of the statements contained in the Registration Statement and
the Prospectus and any amendment or supplement thereto, such counsel is not
passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus and any amendment or supplement thereto (except to
the extent expressly set forth in clause (b) of paragraph (vi) above or set
forth in paragraph (vii) above, as the case may be) and they have not
independently verified the accuracy, completeness or fairness of such statements
(except as aforesaid); that, without limiting the foregoing, they assume no
responsibility for, have not independently verified and have not been asked to
comment on the accuracy, completeness or fairness of the financial statements
and other financial or accounting data included in the Registration Statement,
the Prospectus and any amendment or supplement thereto, or the exhibits to the
Registration Statement, and they have not examined the accounting, financial or
other records from which such financial statements and other financial or
accounting data contained therein were derived; and that they are not experts
with respect to any portion of the Registration Statement and any amendment
thereto, including, without limitation, such financial statements and other
financial or accounting data; such counsel did not participate in the
preparation of the documents incorporated by reference in the Prospectus;
however, they have participated in conferences with officers and other
representatives of the Company, representatives of the independent accountants
of the Company, and representatives of the Underwriters, including counsel for
the Underwriters, at which the contents of the Registration Statement, the
Prospectus and any amendment or supplement thereto and related matters were
discussed; and, based upon such participation and review, and relying as to
materiality in part upon the factual statements of officers and other
representatives of the Company and representatives of the Underwriters, no facts
have come to their attention that have caused them to believe that the
Registration Statement or any amendment thereto (except in each case for the
financial statements and related data and other financial or accounting data or
exhibits contained or incorporated by reference therein or omitted therefrom and
the Form T-1, as to which such counsel need not comment), at the time such
Registration Statement or any such amendment became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein not
misleading or that the Prospectus or any amendment or supplement thereto (except
in each case for the financial statements and related data and other financial
or accounting data contained or incorporated by reference therein or omitted
therefrom, as to which such counsel need not comment), at the time the
Prospectus was issued, at the time any such amended or supplemented prospectus
was issued or at the Closing Date, included or includes an untrue statement of a
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material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
Such counsel may state that its opinion is solely for the benefit of the
Underwriters or the Representatives pursuant to Section 5 of the Agreement, and
may not be used or relied upon by the Underwriters or the Representatives in any
other capacity or for any other purpose and may not be used or relied upon by
any other person or entity for any purpose without such counsel's express prior
written authorization. Such counsel may state that except for the use permitted
therein, such opinion may not be quoted, circulated or published, in whole or in
part, or otherwise referred to, filed with or furnished to any other person or
entity, without such counsel's prior written authorization; that the opinion
expressed therein is not a guarantee and should not be construed or relied on as
such; that the opinion expressed therein is as of the date thereof, and such
counsel expressly disclaims any responsibility to update such opinion after the
date thereof; and that such opinion is strictly limited to the matters stated
therein, and no other or more extensive opinion is intended, implied or to be
inferred beyond the matters expressly stated therein.
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SCHEDULE III
[FORM OF OPINION OF COUNSEL FOR
SELLING STOCKHOLDERS TO BE DELIVERED
PURSUANT TO SECTION 5(j)]
(i) Each Selling Stockholder had good and valid title to the shares of
Purchased Securities sold by such Selling Stockholder free and clear of all
liens, encumbrances, equities or claims and had full right, power and authority
to sell, assign, transfer and deliver such shares of Purchased Securities; and
the several Underwriters, assuming that the Underwriters are bona fide
purchasers within the meaning of Section 8-302 of the Uniform Commercial Code,
have acquired good and valid title to the shares of Purchased Securities
purchased by them from each Selling Stockholder pursuant to the Agreement free
and clear of all liens, encumbrances, equities or claims;
(ii) No consent, approval, authorization or order of, or filing with, any
governmental agency or body or any court is required to be obtained or made by
any Selling Stockholder for the consummation of the transactions contemplated by
the Agreement in connection with the sale of the shares of Purchased Securities
sold by each Selling Stockholder, except such as have been obtained and made
under the Securities Act and such as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Purchased
Securities by the Underwriters;
(iii) The execution, delivery and performance of the Agreement and the
consummation of the transactions therein contemplated will not result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation or order of any governmental
agency or body or any court having jurisdiction over any Selling Stockholder or
any of their properties or any material agreement or instrument to which any
Selling Stockholder is a party or by which any Selling Stockholder is bound or
to which any of the properties of any Selling Stockholder is subject, or the
charter or by-laws of any Selling Stockholder which is a corporation; and
(iv) The Agreement has been duly authorized, executed and delivered by each
Selling Stockholder.
Such counsel's opinion may be subject to the same types of limitations and
qualifications as are set forth in Schedule II.
