Exhibit B-1
CINERGY CORP.
(A Delaware corporation)
PURCHASE AGREEMENT
Dated as of ______________, _______
[Purchaser Name and Address]
Ladies and Gentlemen:
Cinergy Corp. ("Cinergy" or the "Company") confirms its agreement with
____________ (hereinafter, "you" or the "Initial Purchaser) with respect to
the issuance and sale by the Company, on the terms set forth herein, of
$____________ aggregate principal amount of debentures due ______________,
______ (the "Securities") of the Company.
The Securities will be offered and sold to the Initial Purchaser
without registration under the Securities Act of 1933, as amended (the
"Act"), in reliance upon an exemption from the registration requirements of
the Act. In connection with the sale of the Securities, the Company has
prepared a preliminary offering circular dated ______________, _____ (the "
Preliminary Offering Circular") and a final offering circular dated
__________, ______ (the " Offering Circular"), each setting forth certain
information concerning the Company and the Securities. The Company hereby
confirms that it has authorized the use of the Preliminary Offering
Circular and the Offering Circular in connection with the offer and sale of
the Securities. Unless stated to the contrary, all references herein to
the Offering Circular are to the Offering Circular as of the date hereof
and are not meant to include any amendment or supplement thereto subsequent
to the date hereof.
The Company understands that the Initial Purchaser proposes to make
offerings ("Exempt Resales") of the Securities only on the terms and in the
manner set forth in the Offering Circular and Section 3 hereof, as soon as
the Initial Purchaser deems advisable after this Agreement has been
executed and delivered, only to (i) persons in the United States whom the
Initial Purchaser reasonably believes to be "qualified institutional
buyers" ("QIBs") as defined in Rule 144A under the Act, as such rule may be
amended from time to time ("Rule 144A"), in transactions under Rule 144A
and (ii) non-U.S. persons to whom offers and sales of the Securities may be
made in reliance upon Regulation S under the Act ("Regulation S"), in
transactions meeting the requirements of Regulation S.
When used herein in reference to the Company, the term "Operative
Documents" shall refer to this Agreement, the Securities, the Indenture
dated as of February 1, 1997 as supplemented by the _______ supplement to
the indenture dated as of ___________, _____ (as supplemented, the
"Indenture") between the Company and The Fifth Third Bank, as Trustee (the
"Indenture Trustee"),
1. The Company represents and warrants to, and agrees with the
Initial Purchaser that:
(a) The Preliminary Offering Circular and the Offering
Circular have been prepared in connection with the offering of the
Securities. Any reference to the Preliminary Offering Circular or the
Offering Circular shall be deemed to refer to and include all information
incorporated by reference therein and any Additional Issuer Information (as
defined in Section 5A) furnished by the Company prior to the completion of
the distribution of the Securities. The Preliminary Offering Circular and
the Offering Circular and any amendments or supplements thereto did not and
will not, as of their respective dates, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation and
warranty shall not apply to the Initial Purchaser with regard to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by the Initial Purchaser;
(b) the consolidated historical financial statements,
together with related schedules and notes, included or incorporated by
reference in the Offering Circular (and any amendment or supplement
thereto), present fairly the consolidated financial position of the Company
and its subsidiaries at the respective dates indicated and the results of
their operations and their cash flows for the respective periods indicated
in accordance with generally accepted accounting principles consistently
applied throughout such periods;
(c) the Company is a company duly incorporated and validly
existing under the laws of the State of Delaware, and the Company has full
power and authority to conduct its business in each jurisdiction where it
carries on business;
(d) the issue of the Securities and the performance of the
obligations assumed thereunder by the Company and the performance of the
obligations assumed by the Company under the Operative Documents have been
duly authorized by the Company and, upon due execution, issue,
authentication and delivery, the same will constitute legal, valid and
binding obligations of the Company enforceable in accordance with their
respective terms, subject as to enforcement to the laws of bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting creditors rights and to general equity principles and
except that rights to indemnity and contribution under this Agreement may
be limited;
(e) when the Securities are issued and delivered pursuant to
this Agreement, the Securities will not be of the same class (within the
meaning of Rule 144A) as securities which are listed on a national
securities exchange registered under Section 6 of the Exchange Act or
quoted in a U.S. automated inter-dealer quotation system;
(f) neither the Company, nor any affiliate of the Company,
nor any person acting on its or their behalf (other than the Initial
Purchaser, as to which the Company makes no representation) has offered or
sold the Securities by means of any general solicitation or general
advertising within the meaning of Rule 502(c) under the Act or, with
respect to Securities sold outside the United States to Non-U.S. persons
(as defined in Rule 902 under the Act), by means of any directed selling
efforts within the meaning of Rule 902 under the Securities Act and the
Company, any affiliate of the Company and any person acting on its or their
behalf has complied with and will implement the "offering restriction"
within the meaning of such Rule 902.
2. On the basis of the representations, warranties and covenants
contained in this Agreement, and subject to the terms and conditions herein
set forth, the Company agrees to (i) issue and sell to the Initial
Purchaser, and the Initial Purchaser agrees to purchase from the Company,
at a purchase price of ________% plus accrued interest, if any, $__________
principal amount of the Securities, and (ii) pay to the Initial Purchaser a
placement fee of _____% of the aggregate principal amount of the Securities
for placing the Securities (the "Placement Fee"). The payments to be made
at the Time of Delivery are as set forth in Exhibit A hereof.
3. The Initial Purchaser hereby represents and warrants to, and
agrees with the Company that the Initial Purchaser (i) is a QIB; (ii) has
not and will not solicit offers for, or offer or sell, the Securities by
means of any form of general solicitation or general advertising within the
meaning of Rule 502(c) under the Act, or in any manner involving a public
offering within the meaning of Section 4(2) of the Act and (iii) will
solicit offers for the Securities only from, and will offer, sell or
deliver the Securities, as part of their initial offering, only to (i)
persons in the United States whom the Initial Purchaser reasonably believes
to be QIBs or, if any such person is buying for one or more institutional
accounts for which such person is acting as fiduciary or agent, only when
such person has represented to the Initial Purchaser that each such account
is a QIB, to whom notice has been given that such sale or delivery is being
made in reliance on Rule 144A, and, in each case, in transactions under
Rule 144A and (ii) to non-U.S. persons to whom offers and sales of the
Securities may be made in reliance upon Regulation S, in transactions
meeting the requirements of Regulation S.
(a) In connection with sales outside the United States, the
Initial Purchaser represents and warrants to and agrees that it will not
offer, sell or deliver Securities to, or for the account or benefit of,
U.S. persons (i) as part of such Initial Purchaser's distribution at any
time or (ii) otherwise until 40 days after the later of the commencement of
the offering and the Time of Delivery, and it will send to each dealer to
whom it sells Securities during such period a confirmation or other notice
setting forth the restrictions on offers and sales of the Securities within
the United States or to, or for the account or benefit of, U.S. persons.
(b) The Initial Purchaser represents and agrees that it (or
any affiliate) (i) has not offered or sold and, prior to the expiry of the
period six months from the Time of Delivery, will not offer or sell any
Securities to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring holding, managing or
disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulation 1995 (the
"Regulations"), (ii) has complied and will comply with all applicable
provisions of the Financial Services Act of 1986 with respect to anything
done by it in relation to the Securities in, from or otherwise involving
the United Kingdom and (iii) has only issued or passed on and will only
issue or pass on in the United Kingdom any document received by it in
connection with the issue of the Securities to a person who is of a kind
described in Article 11(3) of the Financial Services Act of 1986
(Investment Advertisements) (Exemptions) Order 1996 or is a person to whom
such document may otherwise lawfully be issued or passed on.
4. (a) The Securities to be purchased by the Initial Purchaser
hereunder will he represented by one or more global certificates in book-entry
form which will be deposited by or on behalf of the Company with The
Depository Trust Company ("DTC") or its designated custodian. The Company
will deliver the Securities to the Initial Purchaser against payment by or
on behalf of such Initial Purchaser of the purchase price therefor by
electronic transfer to the order of the Company in Federal (same day) funds
("Wire Transfer"), by causing DTC to credit the Securities to the account
of the Initial Purchaser at DTC. The Company will cause the certificates
representing the Securities to be made available to the Initial Purchaser
for checking at least twenty-four hours prior to the Time of Delivery at
the office of DTC or its designated custodian (the "Designated Office").
The time and date of such delivery and payment shall be _______., New York
City time, on __________, _____ or such other time and date as the Initial
Purchaser and the Company may agree upon in writing. Such time and date are
herein called the "Time of Delivery".
(b) Simultaneously with the purchase by the Initial Purchaser
of the Securities, the Company will pay to the Initial Purchaser by Wire
Transfer the Placement Fee.
(c) The documents to be delivered at the Time of Delivery by
or on behalf of the parties hereto pursuant to Section 7 hereof, including
the Securities and the cross-receipts for the Securities and any additional
documents requested by the Initial Purchaser pursuant to Section 7(a)
hereof, will be delivered at such time and date at the offices of
_____________________________ (the "Closing Location"). The Debentures
will be delivered at the Designated Office at the Time of Delivery.
5. The Company agrees with the Initial Purchaser
(a) To prepare the Offering Circular and, before amending or
supplementing the Offering Circular, to furnish the Initial Purchaser a
copy of such proposed amendment or supplement;
(b) to cooperate with the Initial Purchaser and counsel to the
Initial Purchaser to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the Exempt
Resales, provided that in connection therewith the Company shall not be
required to register or qualify as a foreign corporation, or to take any
action that would subject it to taxation or service of process in any
jurisdiction;
(c) prior to ____________, New York City time, on the New York
Business Day (as defined below) next succeeding the date of this Agreement
and until _________, ______, to furnish the Initial Purchaser, in New York
City, with a copy of the Offering Circular in New York City and each
amendment or supplement thereto, and additional copies thereof in such
quantities as you may from time to time reasonably request, and if, at any
time prior to the consummation of any Exempt Resale, any event shall have
occurred as a result of which the Offering Circular 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 Offering Circular are delivered, not misleading, or, if for any other
reason it shall be necessary or desirable, as deemed by the Company in its
sole discretion, during such same period to amend or supplement the
Offering Circular, to notify you and upon your request to prepare and
furnish without charge to the Initial Purchaser and to any dealer in
securities as many copies as you may from time to time reasonably request
of the amended Offering Circular or supplement to the Offering Circular
which will correct such statement or omission. For the purposes of this
Section 5, "New York Business Day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York City are generally authorized or obligated by law
or executive order to close;
(d) except as permitted by law, during the period of three
years after the Time of Delivery, the Company will not, and will not permit
any of its "affiliates" (as defined in Rule 144 under the Act) to, resell
any of the Securities which constitute "restricted securities" under Rule
144 that have been reacquired by any of them; and
(e) the Company will take reasonable precautions designed to
insure that any offer or sale, direct or indirect, in the United States or
to any U.S. person (as defined in Rule 902 under the Act) of any Securities
or any substantially similar Security issued by the Company within six
months subsequent to the date on which the distribution of the Securities
has been completed (as notified to the Company by the Initial Purchaser),
is made under restrictions and other circumstances reasonably designed not
to affect the status of the offer and sale of the Securities in the United
States contemplated by this Agreement as transactions exempt from the
registration provisions of the Act.
5A. The Company agrees with the Initial Purchaser that at any
time when the Company is not subject to Section 13 or 15(d) of the Exchange
Act, upon the request of any holder of Securities ("Securityholder"), the
Company shall promptly furnish to such Securityholder or to a prospective
purchaser of a Security designated by such Securityholder, as the case may
be, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act ("Additional Issuer Information") in order to
permit compliance by such Securityholder with Rule 144A in connection with
the resale of such Security by such Securityholder.
6. The Company covenants and agrees with the Initial Purchaser
that the Company will pay or cause to be paid all expenses incident to the
performance of the Company's obligations under this Agreement, including
the following: (i) the reasonable fees, disbursements and expenses of the
Company's counsel and accountants in connection with the issue of the
Securities and all other expenses in connection with the preparation,
printing and filing of the Offering Circular and any amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Initial Purchaser and dealers; (ii) the cost of printing or producing the
Operative Documents, closing documents (including any compilations thereof)
and any other documents in connection with the offering, purchase, sale and
delivery of the Securities, except as otherwise provided below; (iii) all
expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the reasonable fees and disbursements of counsel for the
Initial Purchaser in connection with such qualification, except as
otherwise provided below; (iv) any fees charged by securities rating
services for rating the Securities; (v) the cost of printing the
Securities; (vi) the fees and expenses of the Indenture Trustee and any
agent of the Indenture Trustee and the reasonable fees and disbursements of
counsel for the Indenture Trustee in connection with the Operative
Documents; and (vii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however,
that, except as provided in this Section, and Sections 8 and 11 hereof, the
Initial Purchase will pay all of their own costs and expenses, including
the fees of their counsel, transfer taxes on resale of any of the
Securities by them, costs associated with the Blue Sky and legal investment
surveys and any advertising expenses connected with any offers they may
make.
7. The obligations of the Initial Purchaser hereunder shall be
subject, in its discretion, to the condition that all representations and
warranties and other statements of the Company herein are, at and as of the
Time of Delivery, true and correct, the condition that the Company shall
have performed all of their respective obligations hereunder theretofore to
be performed, and the following additional conditions:
(a) You shall have received from your counsel,
_____________________ such opinion or opinions, dated the Time of Delivery,
with respect to the issuance and sale of the Securities and other related
matters as you 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.
(b) An appropriate order or orders of the Securities and
Exchange Commission (hereinafter called the "Commission") under the Public
Utility Holding Company Act of 1935 (the "Holding Company Act") necessary
to permit the issue and sale of the Securities as contemplated hereby and
containing no material provision or condition which is unacceptable to the
Company or the Initial Purchaser shall be in effect and no proceedings to
suspend the effectiveness of such order or orders shall be pending or
threatened.
(c) There shall have been no material adverse change (not in
the ordinary course of business) in the condition of the Company and its
subsidiaries, taken as a whole, subsequent to the execution and delivery of
this Agreement and prior to the Closing Date, from that set forth in or
contemplated by the Offering Circular; and you shall have received on the
Closing Date a certificate, dated the Closing Date and signed by an
executive officer of the Company, to the foregoing effect.
(d) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not have occurred any
downgrading of, nor shall any notice have been given of any review with a
negative implication with respect to, the rating accorded any of the
Company's securities by any of Standard & Poor's, a division of the XxXxxx-Xxxx
Companies, Inc., Xxxxx'x Investors Service, Inc., or Duff & Xxxxxx,
Inc. (or any of their successors).
(e) You shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in (b) of this Section. The officer
making such certificate may rely upon the best or his knowledge as to
proceedings pending or threatened.
(f) You shall have received on the Closing Date the
favorable opinion of __________________________, counsel for the Company,
dated the Closing Date, to the effect that:
(i) the Company is a corporation duly incorporated,
validly existing and qualified to transact business under the laws of the
State of Delaware and, except for certain operating permits for which the
Company has made application but which have either been denied or have not
yet been granted in the form requested, and except for certain notices or
violations, the Company has due corporate and governmental authority to
carry on the businesses in which it is engaged and to own and operate the
properties in use in such businesses;
(ii) the Company has full power and authority and is
duly qualified to conduct its business in each jurisdiction where it
carries on business;
(iii) each of the Operative Documents (other than this
Agreement) have been duly authorized, executed and delivered by the Company
and are valid and binding instruments enforceable in accordance with their
terms, except as (A) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally, (B) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles
of general applicability and (C) rights to indemnity and contributions
thereunder may be limited under applicable law; and the Indenture has been
duly qualified under the Trust Indenture Act of 1939;
(iv) the Securities, when duly executed by the Company
and paid for by the Initial Purchaser pursuant to this Agreement, will be
valid and binding obligations of the Company in accordance with their
terms, except as (A) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally, (B) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles
of general applicability and (C) rights to indemnity and contribution
thereunder may be limited under applicable laws;
(v) the Order of the Commission under the Holding
Company Act authorizing the issuance and sale of the Securities is in
effect on the Closing Date and no further approval, authorization, consent
or order of any other commission or other governmental authority (other
than under state securities or Blue Sky laws, as to which such counsel are
not called upon to express an opinion) is required for the issuance and
sale of the Securities;
(vi) this Agreement has been duly authorized, executed
and delivered by the Company and is a valid and binding agreement of the
Company in accordance with its terms, except as (A) the enforceability
hereof may be limited by bankruptcy, insolvency or similar laws affecting
the enforcement of creditors' rights generally, (B) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability and (C) rights to indemnity and
contribution hereunder may be limited under applicable laws;
(vii) The execution and delivery of the Operative
Documents, the issuance or the Securities in accordance with the Indenture,
and the sale of the Securities in accordance with the Purchase Agreement do
not and will not result in any violation by the Company of any of the terms
or provisions of the Certificate of Incorporation or by-laws of the Company
or of any Indenture, mortgage or other agreement or instrument known to
such counsel, by which the Company is bound.
(viii) such counsel (A) is of the opinion that each
document incorporated by reference in the Offering Circular (except for
operating statistics, financial statements and other financial data therein
as to which such counsel need not express an opinion) complied as to form
in all material respects with the requirements of the Securities Exchange
Act of 1934, together with the applicable rules and regulations of the
Commission thereunder and (B) believes that (except for operating
statistics, financial statements and other financial data therein as to
which such counsel need not express a belief) the Offering Circular at the
date of this Agreement did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading and the Offering Circular (as
amended or supplemented if applicable) on the Closing Date does not contain
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In regard to clause (vi) above, such counsel may state that
no opinion is expressed with respect to the effect of New York law, in
regard to clause (viii) above, such counsel may state that their Opinion
and belief is based upon their participation in the preparation of the
Offering Circular and any supplements and amendments, thereto and upon
their review and discussion of the contents thereof, but is without
independent check or verification except as specified, and that their
opinion in regard to documents filed under the Securities Exchange Act of
1934, called for in clause (viii)(A) above, is based upon the opinion of
counsel satisfactory to them.
(g) You shall have received on the Closing Date a letter,
dated the Closing Date, in form and substance satisfactory to you, from
Xxxxxx Xxxxxxxx LLP, independent accountants, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by reference
into the Offering Circular.
8. The Company agrees to indemnify and hold harmless the Initial
Purchaser and each person, if any, who controls the Initial Purchaser
within the meaning of Section 15 of the Securities Act of 1933 or Section
20 of the Securities Exchange Act of 1934, from and against any and all
losses, claims, damages and liabilities (including the fees and expenses of
counsel in connection with any governmental or regulatory investigation or
proceeding) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Offering Circular or any preliminary
Offering Circular, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information
furnished to the Company by the Initial Purchaser expressly for use
therein.
In case any action shall be brought against the Initial Purchaser
or any person controlling the Initial Purchaser based upon the Offering
Circular or any amendment or supplemental thereto or any preliminary
Offering Circular and in respect of which indemnity may be sought against
the Company, the Initial Purchaser shall promptly notify the Company in
writing, and the Company, upon the request of the Initial Purchaser, shall
assume the defense thereof on behalf of the Initial Purchaser or
controlling person, including the employment of counsel and payment of all
expenses. In any such action, the Initial Purchaser or any such
controlling person shall have the right to employ its own counsel but the
fees and expenses of such counsel shall be at the expense of the Initial
Purchaser or such controlling person unless (i) the employment of such
counsel has been specifically authorized in writing by the Company or (ii)
the named parties to any such action (including any impleaded parties)
include both the Initial Purchaser or such controlling person and the
Company and the initial Purchaser or such controlling person shall have
been advised by such counsel that there may be one or more legal defenses
available to it which are different from or additional to those available
to the Company (it being understood, however, that the Company shall not,
in connection with any one such action or separate but substantially
similar or related actions 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 of attorneys (in addition to one
firm of local counsel) for the Initial Purchaser and controlling persons,
which firm shall be designated in writing by you, and that such fees and
expenses shall be reimbursed as they are incurred). The Company shall not
be liable for indemnification (or contribution as provided below) with
respect to the settlement of any such action effected without its written
consent, but if settled with the written consent of the Company or if there
be a final judgment for the plaintiff in any such action. The Company
agrees to indemnify and hold harmless the Initial Purchaser and any such
controlling person from and against any loss or liability by reason of such
settlement or judgment (or to make contribution as provided below).
The Initial Purchaser agrees to indemnify and hold harmless the
Company, its directors, its officers and any person controlling the Company
to the same extent as the foregoing indemnity from the Company to the
Initial Purchaser, but only with reference to information relating to the
Initial Purchaser furnished by the Initial Purchaser expressly for use in
the Offering Circular, or any preliminary Offering Circular. In case any
action shall be brought against the Company, any of its directors or any
such officer or controlling person based on the Offering Circular,
preliminary Offering Circular and in respect of which indemnity may be
sought against the Initial Purchaser shall have the rights and duties given
to the Company, and the Company, its directors or any such officer or
controlling person shall have the rights and duties given to the Initial
Purchaser, by the preceding paragraph of this Section 8.
If the indemnification provided for in the second paragraph of this
Section 8 is unavailable to the Initial Purchaser or other indemnified
party in respect of any losses, claims, damages or liabilities referred to
therein, then the Company, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Initial
Purchaser 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 of the Initial Purchaser on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and the Initial Purchaser on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Initial Purchaser, in each case
as set forth in the table on the cover page of the Offering Circular. The
relative fault of the Company and of the Initial Purchaser shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the Company or by the
Initial Purchaser and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
If the indemnification provided for in this Section 8 is sought
solely by the Company under the third paragraph hereof and there is no
claim for indemnification by the Initial Purchaser or any person
controlling the Initial Purchaser arising out of the same misstatement or
omission and if such indemnification is unavailable to the Company in
respect of any losses, claims, damages or liabilities referred to in such
fourth paragraph, then Initial Purchaser, in lieu of indemnifying the
Company, shall contribute to the amount paid or payable by the Company as a
result of such losses, claims, damages or liabilities in such proportion as
is appropriate to reflect the relative fault of the Company on the one hand
and of Initial Purchaser on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative fault of
the Company on the one hand and of the Initial Purchaser on the other shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or by the Initial Purchaser and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Initial Purchaser 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 Initial Purchaser 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 in the two immediately preceding paragraphs. The amount paid
or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in such paragraphs shall be deemed to
include, subject to the limitations set forth above, 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, no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total price at
which the Securities purchased hereunder by the Initial Purchaser exceeds
the amount of any damages which such Initial Purchaser has otherwise been
required to pay by reason of 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 of 1933) shall be entitled to contribution from any person who is not
guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this Section
8 and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Initial Purchaser or any person controlling any Initial
Purchaser or by or on behalf of the Company, its directors or officers or
any person controlling the Company and (iii) acceptance of and payment for
any of the Securities.
9. This Agreement shall be subject to termination in your absolute
discretion, by notice given to the Company, if (a) prior to the Closing
Date (i) trading in securities on the New York Stock Exchange or the
American Stock Exchange shall have been suspended or materially limited,
(ii) trading in any securities of the Company shall have been suspended on
any national securities exchange in the United States or in any over-the-counter
market in the United States, (iii) a general moratorium on banking
activities in New York shall have been declared by Federal or New York
State authorities or (iv) there shall have occurred any outbreak or
escalation of hostilities or any change in the financial markets or other
calamity or crisis, any of which is material and adverse and in the case of
any of the events specified in clauses (a)(i) through (iv), such event
either singly or together make it, in your reasonable judgment,
impracticable to market the Securities. Any termination of this Agreement
pursuant to this Section 9 shall be without liability on the part of the
Company to the Initial Purchaser, or the Initial Purchaser to the Company.
If this Agreement shall be terminated by the Initial Purchaser,
because of any failure or refusal on the part of the Company to comply with
the terms or to fulfill any of the conditions of this Agreement or if for
any reason the Company shall be unable to perform its obligations under
this Agreement, the Company will reimburse the Initial Purchaser for all
out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by the Initial Purchaser in connection with
this Agreement or the offering contemplated hereunder.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the Initial Purchaser,
as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of the Initial Purchaser or any controlling
person of the Initial Purchaser or the Company or any officer or director
or controlling person of the Company and shall survive delivery of and
payment for the Securities.
11. If the Securities are not delivered by or on behalf of the
Company as provided herein, the Company will reimburse the Initial
Purchaser for all out-of-pocket expenses approved in writing by the Initial
Purchaser, including fees and disbursements of counsel, reasonably incurred
by the Initial Purchaser in making preparations for the purchase, sale and
delivery of the Securities, but the Company shall then be under no further
liability to the Initial Purchaser except as provided in Sections 6 and 9
hereof.
12. All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Initial Purchaser shall be delivered or
sent by mail, telex or facsimile transmission to you at
________________________________; if to the Company shall be delivered or
sent by mail, telex or facsimile transmission to the Company at Cinergy
Corp., 000 Xxxx Xxxxxx Xxxxxx, X.X. Xxx 000, Xxxxxxxxxx, Xxxx 00000,
Attention: Xxxxx X. Xxxxx. Any such statements, requests, notices or
agreements shall take effect upon receipt thereon.
13. This Agreement shall be binding upon, and inure solely to
the benefit of, the Initial Purchaser and the Company and, to the extent
provided in Sections 9 and 11 hereof the officers and directors of the
Company and each person who controls the Company or the Initial Purchaser,
and their respective heirs, executors, administrators, successors and
assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Securities from the
Initial Purchaser shall be deemed a successor or assign by reason merely of
such purchase.
14. The Company irrevocably (i) agrees that any legal suit, action
or proceeding against it brought by the Initial Purchaser or by any person
who controls the Initial Purchaser arising out of or based upon this
Agreement or the transactions contemplated hereby may be instituted in any
New York court, (ii) waives, to the fullest extent it may effectively do
so, any objection which it may now or hereafter have to the laying of venue
of any such proceeding and (iii) submits to the nonexclusive jurisdiction
of such courts in any such suit, action or proceeding.
15. Time shall be of the essence of this Agreement.
16. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York without giving effect to choice of
law or conflicts of laws principles.
17. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us counterparts hereof, and upon the acceptance hereof by you,
this letter and such acceptance hereof shall constitute a binding agreement
between you and the Company as of the date above written.
Very truly yours,
CINERGY CORP.
By:
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
Accepted as of the date hereof:
[Purchaser Name]
By:
Name:
Title:
Exhibit A
Funds Flow Memorandum
I. _______________ as Initial Purchaser of the Securities will wire in
immediately available finds, $_______________ (_______% x $____________)
to __________________________________________:
Amount: $
Payee:
ABA#:
Ref:
Account #:
Attn:
II. Cinergy Corp., as Issuer will wire to ______________________, as
Placement Agent, an amount equal to $__________ (_____% X
$_______________) in connection with the Securities offering:
Amount: $
Payee:
Bank:
ABA#:
Account#:
Attn:
