EXHIBIT 1.1
SIERRA PACIFIC RESOURCES
(a Nevada Corporation)
___________ Premium Income Equity Securities(SM) ("PIES(SM)")
Consisting of ___________ Corporate PIES
UNDERWRITING AGREEMENT
----------------------
Dated: November __, 2001
TABLE OF CONTENTS
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY................................................2
(a) FILINGS UNDER SECURITIES LAWS...................................................................2
(b) ELIGIBILITY FOR FORM S-3........................................................................3
(c) COMPLIANCE WITH REGISTRATION REQUIREMENTS.......................................................3
(d) INCORPORATED DOCUMENTS..........................................................................3
(e) GOOD STANDING...................................................................................4
(f) CAPITALIZATION..................................................................................4
(g) ABSENCE OF PROCEEDINGS..........................................................................4
(h) ABSENCE OF DEFAULTS.............................................................................5
(i) REGISTRATION RIGHTS.............................................................................5
(j) NO MATERIAL LOSS; NO MATERIAL ADVERSE CHANGE....................................................5
(k) FINANCIAL STATEMENTS............................................................................5
(l) PRO FORMAS......................................................................................6
(m) INDEPENDENT ACCOUNTANTS.........................................................................6
(n) TITLE TO PROPERTY...............................................................................6
(o) POSSESSION OF LICENSES AND PERMITS..............................................................6
(p) NO MATERIAL TRANSACTIONS, ETC...................................................................7
(q) AUTHORIZATION AND DESCRIPTION OF UNDERWRITING AGREEMENT.........................................7
(r) AUTHORIZATION AND DESCRIPTION OF PURCHASE CONTRACT AGREEMENT....................................7
(s) AUTHORIZATION AND DESCRIPTION OF CORPORATE PIES.................................................8
(t) AUTHORIZATION AND DESCRIPTION OF TREASURY PIES..................................................8
(u) AUTHORIZATION AND DESCRIPTION OF INDENTURE......................................................8
(v) AUTHORIZATION AND DESCRIPTION OF SENIOR NOTES...................................................9
(w) AUTHORIZATION AND DESCRIPTION OF PLEDGE AGREEMENT...............................................9
(x) AUTHORIZATION AND DESCRIPTION OF REMARKETING AGREEMENT..........................................9
(y) UNISSUED SHARES................................................................................10
(z) PREEMPTIVE RIGHTS..............................................................................10
(aa) ABSENCE OF DEFAULTS AND CONFLICTS..............................................................10
(bb) INVESTMENT COMPANY ACT.........................................................................11
(cc) PUBLIC UTILITY HOLDING COMPANY ACT.............................................................11
(dd) RULE 501(B)....................................................................................11
(ee) OFFICER'S CERTIFICATE..........................................................................11
[(ff) CERTAIN PROSPECTUS INFORMATION.................................................................11
2. PURCHASE OF THE CORPORATE PIES BY THE UNDERWRITERS......................................................11
3. OFFERING OF CORPORATE PIES BY THE UNDERWRITERS..........................................................12
4. DELIVERY OF AND PAYMENT FOR THE CORPORATE PIES..........................................................12
5. FURTHER AGREEMENTS OF THE COMPANY.......................................................................13
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS.................................13
(b) DELIVERY OF REGISTRATION STATEMENTS............................................................13
(c) DELIVERY OF DOCUMENTS..........................................................................13
(d) FILING OF AMENDMENTS...........................................................................14
(e) DELIVERY TO UNDERWRITERS.......................................................................14
(f) EARNING STATEMENT..............................................................................14
(g) BLUE SKY.......................................................................................14
(h) COMPANY REPORTS................................................................................14
(i) LISTING........................................................................................15
(j) PRICE STABILIZATION............................................................................15
(k) DTC............................................................................................15
(l) USE OF PROCEEDS................................................................................15
(m) INVESTMENT COMPANY ACT.........................................................................15
(n) RESTRICTION ON SALE OF SECURITIES..............................................................15
6. EXPENSES................................................................................................16
7. CONDITIONS OF UNDERWRITERS' OBLIGATIONS.................................................................17
(a) SEC MATTERS....................................................................................17
(b) NO MISSTATEMENTS OR OMISSIONS..................................................................17
(c) CORPORATE PROCEEDINGS..........................................................................17
(d) LOCK-UP AGREEMENTS.............................................................................17
(e) OPINIONS OF COUNSEL FOR COMPANY................................................................18
(f) OPINION OF COUNSEL FOR PURCHASE CONTRACT AGENT AND INDENTURE TRUSTEE...........................18
(g) OPINION OF COUNSEL FOR COLLATERAL AGENT AND SECURITIES INTERMEDIARY............................18
(h) OPINIONS OF COUNSEL FOR UNDERWRITERS...........................................................18
(i) ACCOUNTANTS' COMFORT LETTER....................................................................18
(j) OFFICERS' CERTIFICATES.........................................................................18
(k) SENIOR NOTES...................................................................................19
(l) CORPORATE PIES.................................................................................19
(m) OTHER INFORMATION..............................................................................19
(n) NO MATERIAL ADVERSE DEVELOPMENTS...............................................................19
(o) NO DOWNGRADE...................................................................................20
(p) GENERAL MARKET OUT.............................................................................20
8. INDEMNIFICATION AND CONTRIBUTION........................................................................21
(a) INDEMNIFICATION OF UNDERWRITERS................................................................21
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS.............................................22
(c) NOTIFICATION; ACTION AGAINST PARTIES; SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE......22
(d) CONTRIBUTION...................................................................................23
(e) INFORMATION FURNISHED BY UNDERWRITERS..........................................................24
9. DEFAULTING UNDERWRITERS.................................................................................25
10. TERMINATION.............................................................................................25
11. REIMBURSEMENT OF UNDERWRITERS' EXPENSES.................................................................26
12. NOTICES, ETC............................................................................................26
13. PERSONS ENTITLED TO BENEFIT OF AGREEMENT................................................................26
14. SURVIVAL................................................................................................27
15. DEFINITION OF THE TERM "BUSINESS DAY"...................................................................27
16. GOVERNING LAW...........................................................................................27
17. CONSENT TO JURISDICTION.................................................................................27
18. COUNTERPARTS............................................................................................27
19. HEADINGS................................................................................................27
20. UNDERWRITERS' COUNSEL...................................................................................27
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SCHEDULE 1.......................................................................................................1
SCHEDULE 2.......................................................................................................2
ANNEX A..........................................................................................................1
ANNEX B..........................................................................................................1
ANNEX C..........................................................................................................1
ANNEX D..........................................................................................................1
ANNEX E..........................................................................................................1
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SIERRA PACIFIC RESOURCES
_________ PREMIUM INCOME EQUITY SECURITIES(SM) ("PIES(SM)")
CONSISTING OF _________ CORPORATE PIES
UNDERWRITING AGREEMENT
----------------------
November ___, 2001
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇▇▇▇▇▇▇ SACHS & CO.
FIRST UNION SECURITIES, INC.
c/▇ ▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Ladies and Gentlemen:
Sierra Pacific Resources, a Nevada corporation (the "COMPANY"),
proposes, subject to the terms and conditions stated herein, to issue and sell
________ of its Corporate PIES (the "FIRM CORPORATE PIES") to ▇▇▇▇▇▇ Brothers
Inc. and the other underwriters named in Schedule 1 hereto (the "UNDERWRITERS").
In addition, the Company proposes to grant to the Underwriters an option to
purchase up to an additional ____ Corporate PIES on the terms and for the
purposes set forth in Section 2 (the "OPTION CORPORATE PIES" and, together with
the Firm PIES (the "CORPORATE PIES")). This is to confirm the agreement between
the Company and the Underwriters concerning the offer, issue and sale of the
Corporate PIES.
Each Corporate PIES will consist of (a) a stock purchase
contract (a "PURCHASE CONTRACT") to be issued by the Company pursuant to a
Purchase Contract Agreement (the "PURCHASE CONTRACT AGREEMENT") to be entered
into between the Company and The Bank of
New York, as Purchase Contract Agent
(the "PURCHASE CONTRACT AGENT"), under which (i) the holder will agree to
purchase from the Company, and the Company will agree to sell to the holder, on
______, 2005, for $50, a number of shares of its common stock, par value $1.00
per share (the "COMMON STOCK"), equal to the settlement rate then in effect and
as subject to adjustment, in each case, as set forth in the Prospectus (as
hereinafter defined), and (ii) the Company will pay to the holder contract
adjustment payments at the annual rate of ___% payable quarterly in arrears, as
set forth in the Prospectus, and (b) one of the Company's ___% Senior Notes due
2007 (each, a "SENIOR NOTE"), having a principal amount of $50. The Company will
issue the Senior Notes pursuant to the Indenture, dated as of May 1, 2000 (the
"ORIGINAL INDENTURE"), as supplemented by an Officer's Certificate, dated as of
November __, 2001, relating to the Senior Notes (the Original Indenture, as so
supplemented, being hereinafter called the "INDENTURE").
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In accordance with the terms of the Purchase Contract
Agreement, the holders of the Corporate PIES will pledge their Senior Notes to
▇▇▇▇▇ Fargo Bank Minnesota, National Association, as Collateral Agent (the
"COLLATERAL AGENT"), pursuant to a Pledge Agreement (the "PLEDGE AGREEMENT") to
be entered into among the Company, the Purchase Contract Agent, ▇▇▇▇▇ Fargo Bank
Minnesota, National Association, as Securities Intermediary (the "SECURITIES
INTERMEDIARY"), and the Collateral Agent, to secure the holders' obligations to
purchase Common Stock under the Purchase Contracts. Under certain circumstances,
holders of Corporate PIES may substitute certain U.S. Treasury securities for
the Senior Notes that are a part of such holders' Corporate PIES and thereby
create Treasury PIES (the "TREASURY PIES") pursuant to the terms of the Purchase
Contract Agreement and the Pledge Agreement.
In addition, the Senior Notes will be subject to remarketing
to satisfy the Corporate PIES holders' obligations to settle the Purchase
Contract under the Purchase Contract Agreement pursuant to a Remarketing
Agreement (the "REMARKETING AGREEMENT") to be entered into between the Company
and ▇▇▇▇▇▇ Brothers Inc., as Remarketing Agent (the "REMARKETING AGREEMENT").
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY.
The Company represents, warrants and agrees that:
(a) FILINGS UNDER SECURITIES LAWS. (i) A registration
statement on Form S-3 (registration no. 333-72160) setting
forth information with respect to the Company and the
Company's senior debt securities, shares of Common Stock,
stock purchase contracts and certain other securities (A) has
been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended, and
the rules and regulations of the Securities and Exchange
Commission (the "COMMISSION") thereunder (collectively, the
"SECURITIES ACT"), (B) has been filed with the Commission
under the Securities Act and (C) became effective under the
Securities Act on November 7, 2001, and the Indenture has been
qualified under the Trust Indenture Act of 1939, as amended
and the rules and regulations of the Commission thereunder
(collectively, the "TRUST INDENTURE ACT"). Copies of such
registration statement and all exhibits thereto have been
delivered by the Company to you. As used in this Agreement,
"EFFECTIVE TIME" means the date and the time as of which such
registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the
Commission; "EFFECTIVE DATE" means the date of the Effective
Time; "PRELIMINARY PROSPECTUS" means each prospectus included
in such registration statement, or amendments thereof, before
it became effective under the Securities Act and any
prospectus filed with the Commission by the Company with the
consent of ▇▇▇▇▇▇ Brothers Inc. pursuant to Rule 424(a) under
the Securities Act; "REGISTRATION STATEMENT" means such
registration statement, as amended as of the Effective Time,
including all information contained in the final prospectus
filed with the Commission pursuant to Rule 424(b) under the
Securities Act and deemed to be a part of the registration
statement as of the Effective Time [pursuant to Rule 430A of
the Securities Act]; and "PROSPECTUS" means the prospectus
(including any supplement thereto) in the form first used to
confirm sales of Corporate PIES.
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(ii) Pursuant to Rule 429 under the Securities Act
the Prospectus will be used as a combined prospectus relating
to the Registration Statement and to the registration
statement filed by the Company with the Commission on June 7,
1999 (registration no. 333-80149) which, as subsequently
amended, became effective on May 3, 2000. Unless the context
otherwise requires, all references in this Agreement to the
Registration Statement shall be deemed to include such prior
registration statement.
(iii) All references in this Agreement to the
Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include all
documents incorporated by reference in the Registration
Statement, any Preliminary Prospectus or the Prospectus, as
the case may be (the "INCORPORATED DOCUMENTS"); and all
references in this Agreement to amendments or supplements to
the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any
document filed under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission
thereunder (collectively, the "EXCHANGE ACT"), which is
incorporated by reference in the Registration Statement, such
Preliminary Prospectus or the Prospectus, as the case may be.
(b) ELIGIBILITY FOR FORM S-3. The conditions for use
of Form S-3, as set forth in the General Instructions thereto,
have been satisfied.
(c) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The
Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration
Statement or the Prospectus will, when they become effective
or are filed with the Commission, as the case may be, conform
in all respects to the requirements of the Securities Act and
do not and will not, as of the applicable Effective Date (as
to the Registration Statement and any amendment thereto) and
as of the applicable filing date (as to the Prospectus and any
amendment or supplement thereto) contain an untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading; PROVIDED that, the Company makes no
representation or warranty as to information contained in or
omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with written information
furnished to the Company by any Underwriter through ▇▇▇▇▇▇
Brothers Inc. specifically for inclusion therein. The
Indenture conforms in all material respects to the
requirements of the Trust Indenture Act.
(d) INCORPORATED DOCUMENTS. (i) The Incorporated
Documents when they became effective or were filed with the
Commission, as the case may be, conformed in all material
respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and none of such documents
contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading; and
any further documents so filed and incorporated by reference
in the Prospectus, when such documents are filed with the
Commission, will conform in all material
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respects to the requirements of the Exchange Act and will not
contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading.
(e) GOOD STANDING. Each of the Company and its
Significant Subsidiaries (as defined below) has been duly
organized and is validly existing as a corporation in good
standing under the laws of the State of Nevada, is duly
qualified to do business and is in good standing as a foreign
business entity in each jurisdiction in which its ownership or
lease of property or the conduct of its businesses requires
such qualification, and has all corporate power and authority
necessary to own, lease or hold its properties and to conduct
the businesses in which it is engaged, except where the
failure to so qualify or to be in good standing would not have
a material adverse effect on the business, affairs,
management, condition (financial or otherwise), stockholders'
equity or results of operations of the Company and its
subsidiaries considered as a whole (a "Material Adverse
Effect"); and none of the subsidiaries of the Company other
than Nevada Power Company and Sierra Pacific Power Company is
a "significant subsidiary", as such term is defined in Rule
405 of the Securities Act (each, a "SIGNIFICANT SUBSIDIARY").
(f) CAPITALIZATION. The Company has an authorized
capitalization as set forth in the Company's consolidated
statement of capitalization as of December 31, 2000
incorporated by reference in the Prospectus; all of the issued
shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and
non-assessable; all of the issued shares of capital stock or
other ownership interests of each subsidiary of the Company
have been duly and validly authorized and issued and are fully
paid and non-assessable; and all shares of the issued and
outstanding common stock of the Company's Significant
Subsidiaries are owned by the Company; and all shares of
capital stock or other ownership interests of each subsidiary
of the Company which are owned, directly or indirectly, by the
Company are so owned free and clear of all liens,
encumbrances, equities, claims or adverse interests
(collectively, "LIENS") of any nature. There has been no
change in the outstanding capital stock of the Company or any
of its subsidiaries since September 30, 2001 in the Prospectus
except with respect to changes in outstanding Common Stock
resulting from transactions relating to employee benefit
plans, non-employee director plans or the common stock
investment plan existing on the date hereof.
(g) ABSENCE OF PROCEEDINGS. Except as described in
the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a
party or of which any property or assets of the Company or any
of its subsidiaries is the subject which, if determined
adversely to the Company or such subsidiary, would be
reasonably likely to result in a Material Adverse Effect; and,
to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or
threatened by others.
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(h) ABSENCE OF DEFAULTS. Except circumstances which
are not reasonably likely, individually or in the aggregate,
to result in a Material Adverse Effect, neither the Company
nor any of its subsidiaries (i) is in violation of its charter
or by-laws, (ii) is in default, and no event has occurred
which, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any
term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or
to which any of its properties or assets is subject or (iii)
is in violation of any law, ordinance, governmental rule,
regulation or court decree to which it or its property or
assets may be subject or has failed to obtain any license,
permit, certificate, franchise or other governmental
authorization or permit relating to the ownership of its
property or to the conduct of its business.
(i) REGISTRATION RIGHTS. Except as described in the
Prospectus, there are no contracts, agreements or
understandings between the Company and any person granting
such person the right to require the Company to file a
registration statement under the Securities Act with respect
to any securities of the Company owned or to be owned by such
person.
(j) NO MATERIAL LOSS; NO MATERIAL ADVERSE CHANGE.
Except as set forth in or contemplated by the Prospectus, (i)
neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements
included in the Prospectus, any material loss or interference
with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree
(a "MATERIAL LOSS"); and, (ii) since such date, there has not
been any change in the capital stock, short-term debt or
long-term debt of the Company or any of its subsidiaries or
any material adverse change, or any development reasonably
likely to result in a material adverse change, in or affecting
the business, general affairs, management, consolidated
financial position, stockholders' equity, or results of
operations of the Company and its subsidiaries considered as a
whole (a "MATERIAL ADVERSE CHANGE").
(k) FINANCIAL STATEMENTS. The financial statements
(including the related notes and supporting schedules)
incorporated by reference in the Prospectus (and any
supplement thereto) present fairly the financial condition,
the results of operations and the changes in financial
position of the Company and its consolidated subsidiaries on
the basis stated therein at the respective dates or for the
respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance
with generally accepted accounting principles consistently
applied, except as noted therein, throughout the periods
involved; the supporting schedules, if any, incorporated by
reference in the Prospectus present fairly in accordance with
generally accepted accounting principles the information
required to be stated therein; and the other financial and
statistical information and data set forth or incorporated by
reference in the Prospectus (and any supplement thereto) are,
in all material respects, accurately
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presented and prepared on a basis consistent with such
financial statements and the books and records of the Company.
(l) PRO FORMAS. The pro forma financial statements of
the Company and its consolidated subsidiaries and the related
notes thereto in the Prospectus (and any supplement thereto),
if any, have been prepared on a basis consistent with the
historical financial statements of the Company and its
consolidated subsidiaries, give effect to the assumptions used
in the preparation thereof on a reasonable basis and in good
faith and present fairly the transactions purported to be
presented. Such pro forma financial statements have been
prepared in accordance with the applicable requirements of
Rule 11-02 of Regulation S-X promulgated by the Commission.
The other pro forma financial and statistical information and
data incorporated by reference in the Prospectus (and any
supplement thereto) are, in all material respects, accurately
presented and prepared on a basis consistent with the pro
forma financial statements.
(m) INDEPENDENT ACCOUNTANTS. Deloitte & Touche LLP
(the "ACCOUNTANTS"), who have certified the financial
statements of the Company and whose report is incorporated by
reference in the Prospectus are independent public accountants
as required by the Securities Act; and the Accountants were
independent accountants as required by the Securities Act
during the periods covered by the financial statements on
which they reported.
(n) TITLE TO PROPERTY. The Company and its
Significant Subsidiaries have good and marketable title in fee
simple to all real property and good and marketable title to
all personal property owned by them, in each case free and
clear of all liens, encumbrances and defects, except such as
are (i) described or referred to in the Prospectus or (ii) do
not, individually or in the aggregate, affect the value of
such property or interfere with the use made and proposed to
be made of such property to such extent as might reasonably be
expected to result in a Material Adverse Effect; and all
assets held under lease by the Company and its Significant
Subsidiaries are held by them under valid, subsisting and
enforceable leases, with such exceptions as are not material
to the Company and its subsidiaries considered as a whole, and
such leases do not interfere with the use made and proposed to
be made of such property and buildings by the Company and its
Significant Subsidiaries to such extent as would be reasonably
likely to result in a Material Adverse Effect.
(o) POSSESSION OF LICENSES AND PERMITS. Each of the
Company and its Significant Subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and
other approvals (each, an "AUTHORIZATION") of, and has made
all filings with and notices to, all governmental or
regulatory authorities and self-regulatory organizations and
all courts and other tribunals, including, without limitation,
under any applicable environmental law, ordinance, rule,
regulation, order, judgment, decree or permit, as are
necessary to own, lease, license and operate its respective
properties and to conduct its business, except where the
failure to have any such Authorization or to make any such
filing or
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notice would not have a Material Adverse Effect. Except for
circumstances which are not reasonably likely to result in a
Material Adverse Effect, (i) each such Authorization is valid
and in full force and effect and each of the Company and its
Significant Subsidiaries, as the case may be, is in compliance
with all the terms and conditions thereof and with the rules
and regulations of the authorities and governing bodies having
jurisdiction with respect thereto; (ii) no event has occurred
(including, without limitation, the receipt of any notice from
any authority or governing body) which allows or, after notice
or lapse of time or both, would allow, revocation, suspension
or termination of any such Authorization or results or, after
notice or lapse of time or both, would result in any other
impairment of the rights of the holder of any such
Authorization; and (iii) except as disclosed in the
Prospectus, such Authorizations contain no restrictions that
are burdensome to the Company or any of its Significant
Subsidiaries.
(p) NO MATERIAL TRANSACTIONS, ETC. Since the date as
of which information is given in the Prospectus and except as
otherwise disclosed in the Prospectus, (i) neither the Company
nor any of its Significant Subsidiaries has incurred any
liability or obligation, direct or contingent, or entered into
any transaction which liability, obligation or transaction is
(A) not in the ordinary course of business and (B) material
with respect to the Company and its subsidiaries considered as
a whole, and (ii) the Company has not declared or paid any
dividend on any of its capital stock except for dividends on
the Common Stock in amounts per share that are consistent with
past practice.
(q) AUTHORIZATION AND DESCRIPTION OF
UNDERWRITING
AGREEMENT. The Company has all power and authority necessary
to execute and deliver this Agreement and perform its
obligations hereunder; this Agreement and the transactions
contemplated hereby have been duly authorized by the Company;
this Agreement has been duly executed and delivered by the
Company, and this Agreement conforms in all material respects
to the description thereof contained in the Prospectus.
(r) AUTHORIZATION AND DESCRIPTION OF PURCHASE
CONTRACT AGREEMENT. The Company has all power and authority
necessary to execute and deliver the Purchase Contract
Agreement and perform its obligations thereunder; the Purchase
Contract Agreement and the transactions contemplated thereby
have been duly authorized by the Company; the Purchase
Contract Agreement has been duly executed and delivered by the
Company and, assuming due authorization, execution and
delivery by the Purchase Contract Agent, it constitutes a
legally valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and
fair dealing; and the Purchase Contract Agreement will
conform, when
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executed and delivered, in all material respects to the
description thereof contained in the Prospectus.
(s) AUTHORIZATION AND DESCRIPTION OF CORPORATE PIES.
The Corporate PIES, when duly executed and delivered by the
Company (assuming due execution by the Purchase Contract Agent
as attorney-in-fact for the holders thereof and due
authentication by the Purchase Contract Agent) and, upon
payment therefor as set forth herein, will be duly and validly
issued and outstanding, and will constitute legally valid and
binding obligations of the Company, entitled to the benefits
of the Purchase Contract Agreement and enforceable against the
Company in accordance with their terms, subject to the effects
of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to
or affecting creditors rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing;
and the Corporate PIES will conform, when issued, in all
material respects to the description thereof contained in the
Prospectus.
(t) AUTHORIZATION AND DESCRIPTION OF TREASURY PIES.
The Treasury PIES, if duly executed and delivered by the
Company (assuming due execution by the Purchase Contract Agent
as attorney-in-fact for the holders thereof and due
authentication by the Purchase Contract Agent) and, upon
substitution of the requisite number of Treasury Securities
for the applicable Senior Notes as set forth in the
Prospectus, will be duly and validly issued and outstanding,
and will constitute legally valid and binding obligations of
the Company, entitled to the benefits of the Purchase Contract
Agreement and enforceable against the Company in accordance
with their terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors
rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing; and the Treasury PIES
will conform, if issued, to the description thereof contained
in the Prospectus.
(u) AUTHORIZATION AND DESCRIPTION OF INDENTURE. The
Company had all necessary corporate power and authority to
execute and deliver the Indenture and had and continues to
have all necessary corporate power and authority to perform
its obligations thereunder; the Indenture and the transactions
contemplated thereby have been duly authorized by the Company;
the Indenture has been duly executed and delivered by the
Company and, assuming due authorization, execution and
delivery by the Indenture Trustee, it constitutes a legally
valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, subject to
the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing;
the Indenture has been duly qualified under the Trust
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Indenture Act; and the Indenture conforms in all material
respects to the description thereof contained in the
Prospectus.
(v) AUTHORIZATION AND DESCRIPTION OF SENIOR NOTES.
The Senior Notes, when duly executed, authenticated, issued
and delivered as contemplated by the Indenture against payment
of the agreed consideration therefor, will be duly and validly
issued and outstanding, and will constitute legally valid and
binding obligations of the Company, entitled to the benefits
of the Indenture and enforceable against the Company in
accordance with their terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and
an implied covenant of good faith and fair dealing; and the
Senior Notes will conform, when issued, in all material
respects to the description thereof contained in the
Prospectus.
(w) AUTHORIZATION AND DESCRIPTION OF PLEDGE
AGREEMENT. The Company has all necessary power and authority
to execute and deliver the Pledge Agreement and perform its
obligations thereunder; the Pledge Agreement and the
transactions contemplated thereby have been duly authorized by
the Company; the Pledge Agreement has been duly executed and
delivered by the Company and, assuming due authorization,
execution and delivery by the Purchase Contract Agent, the
Securities Intermediary and the Collateral Agent, it
constitutes a legally valid and binding agreement of the
Company, enforceable against the Company in accordance with
its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing; and the Pledge Agreement will
conform, when executed and delivered, in all material respects
to the description thereof contained in the Prospectus.
(x) AUTHORIZATION AND DESCRIPTION OF REMARKETING
AGREEMENT. The Company has all necessary power and authority
to execute and deliver the Remarketing Agreement and perform
its obligations thereunder; the Remarketing Agreement and the
transactions contemplated thereby have been duly authorized by
the Company and, assuming due authorization, execution and
delivery by the Remarketing Agent, it constitutes a legally
valid and binding agreement of the Company, enforceable
against the company in accordance with its terms, subject to
the effect of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing,
and except with respect to the rights of indemnification and
contribution hereunder, where enforcement hereof may be
limited by federal or state securities laws or the policies
underlying such laws; the Remarketing Agreement has been duly
executed and delivered by the Company; and the Remarketing
Agreement will
E-9
conform, when executed and delivered, in all material respects
to the description thereof contained in the Prospectus.
(y) UNISSUED SHARES. The unissued shares of common
stock to be issued and sold by the Company upon settlement of
the Purchase Contracts have been duly authorized and reserved
for issuance and, when issued and delivered in accordance with
the provisions of the Purchase Contracts, will be duly and
validly issued, fully paid and non-assessable and will conform
in all material respects to the description thereof contained
in the Prospectus.
(z) PREEMPTIVE RIGHTS. Except as described in the
Prospectus, there are no preemptive or other rights to
subscribe for or to purchase, nor is there any restriction on
the voting or transfer of, any of the Corporate PIES, the
Treasury PIES, the Stock Purchase Contracts, the Senior Notes
or any shares of Common Stock (collectively, the "SECURITIES")
pursuant to the Company's articles of incorporation or by-laws
or any agreement or instrument, except such preemptive or
other rights and/or restrictions as relate to the transactions
contemplated by the Stock Purchase Agreement, the Pledge
Agreement and the Indenture.
(aa) ABSENCE OF DEFAULTS AND CONFLICTS. The
execution, delivery and performance of this
Underwriting
Agreement, the Purchase Contract Agreement, the Indenture, the
Pledge Agreement and the Remarketing Agreement (collectively,
the "TRANSACTION AGREEMENTS") and the consummation by the
Company of the transactions contemplated hereby and thereby,
including without limitation the issuance, delivery and sale
of the Securities (collectively, the "TRANSACTIONS"), do not
and will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of
the properties or assets of the Company or any of its
subsidiaries is subject, which would be reasonably likely to
result in a Material Adverse Effect, (ii) result in any
violation of the provisions of the charter or by-laws of the
Company or any of its subsidiaries, (iii) result in any
violation of any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction
over the Company or any of its subsidiaries or any of their
respective properties or assets, which would be reasonably
likely to result in a Material Adverse Effect or (iv) require
any material consent, approval, authorization or order of, or
filing or registration with, any such court or governmental
agency or body for the consummation of the Transactions except
for (A) the registration of the Securities under the
Securities Act, (B) the qualification of the Indenture under
the Trust Indenture Act and (C) such consents, approvals,
authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state
securities laws in connection with the purchase of the
Corporate PIES (and the securities which are components of the
Corporate PIES as set forth above) by the Underwriters
pursuant to this
Underwriting Agreement.
E-10
(bb) INVESTMENT COMPANY ACT. Neither the Company nor
any subsidiary is or, as of the applicable Delivery Date after
giving effect to the issuance of the Corporate PIES and the
application of the net proceeds therefrom as described in the
Prospectus, will be an "investment company" as defined under
the Investment Company Act of 1940, as amended, and the rules
and regulations of the Commission thereunder.
(cc) PUBLIC UTILITY HOLDING COMPANY ACT. The Company
is a "holding company" under the Public Utility Holding
Company Act of 1935, as amended (the "HOLDING COMPANY ACT"),
but, pursuant to Section 3(a)(1) of the Holding Company Act,
is exempt from all provisions of the Holding Company Act
except Section 9(a)(2) thereof.
(dd) RULE 501(b). Neither the Company, nor to its
knowledge, any of its Affiliates (as defined in Rule 501(b) of
Regulation D, an "AFFILIATE"), has taken, directly or
indirectly, any action designed to cause or result in, or
which has constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of
the Corporate PIES to facilitate the sale or resale of such
securities.
(ee) OFFICER'S CERTIFICATE. Each certificate signed
by any officer of the Company and delivered to the
Underwriters or counsel for the Underwriters shall be deemed
to be a representation and warranty by the Company to the
Underwriters as to the matters covered thereby.
[(ff) CERTAIN PROSPECTUS INFORMATION. The information
under "Accounting Treatment" in the Prospectus insofar as such
information purports to state generally accepted accounting
principles is correct in all material respects.]
2. PURCHASE OF THE CORPORATE PIES BY THE UNDERWRITERS. On the
basis of the representations and warranties contained in, and subject to the
terms and conditions of, this Agreement, the Company agrees to issue and sell
_________ Firm Corporate PIES to the several Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase the number of Firm
Corporate PIES set forth opposite that Underwriter's name in Schedule 1 hereto.
In addition, the Company grants to the Underwriters an option to
purchase up to __________ Option Corporate PIES. Such option is granted for the
purpose of covering over-allotments in the sale of Firm Corporate PIES and is
exercisable as provided in Section 4 hereof. The number of Option Corporate PIES
may be purchased severally for the account of the Underwriters in proportion to
the number of Firm Corporate PIES set forth opposite the name of such
Underwriters in Schedule 1 hereto.
The price of both the Firm Corporate PIES and any Option Corporate PIES
shall be __________% of the stated amount thereof plus an amount equal to any
adjustment payments under the Purchase Contracts, and any interest on the Senior
Notes, accrued after November __, 2001.
E-11
The Company shall not be obligated to deliver any of the Corporate PIES
to be delivered on any Delivery Date (as hereinafter defined), except upon
payment for all the Corporate PIES to be purchased on such Delivery Date as
provided herein.
3. OFFERING OF CORPORATE PIES BY THE UNDERWRITERS. The several
Underwriters propose to offer the Firm Corporate PIES for sale upon the terms
and conditions set forth in the Prospectus.
4. DELIVERY OF AND PAYMENT FOR THE CORPORATE PIES. At 10:00
a.m., Eastern Standard Time, on the third full business day following the date
of this Agreement, or at such other time or date as shall be determined by
agreement between ▇▇▇▇▇▇ Brothers Inc. and the Company (such time and date being
referred to as the "FIRST DELIVERY DATE"), the Company shall deliver or cause to
be delivered, against payment, the Firm Corporate PIES in the form of one or
more global securities ("GLOBAL SECURITIES") deposited with the Indenture
Trustee, as custodian for The Depository Trust Company ("DTC"), and registered
in the name of Cede & Co., as nominee for DTC, to be held by DTC initially for
the accounts of the several Underwriters. Contemporaneously, ▇▇▇▇▇▇ Brothers
Inc., on behalf of the several Underwriters, shall make payment of the purchase
price of the Firm Corporate PIES by wire transfer, in immediately available
funds, to or upon the order of the Company. Delivery of such Global Securities,
as set forth above, shall be made to the Indenture Trustee at the offices of
__________________. The Company shall make the Global Securities representing
the Firm Corporate PIES available for inspection by the Underwriters at such
offices of ______________ not later than 2:00 p.m., Eastern Standard Time, on
the business day prior to the First Delivery Date.
The option granted in Section 2 will expire 13 days after the date of
this Agreement and may be exercised in whole or in part from time to time by
written notice being given to the Company by ▇▇▇▇▇▇ Brothers Inc. Such notice
shall set forth the number (which shall be an integral multiple of 20) of Option
Corporate PIES as to which the option is being exercised and the date and time,
as determined by ▇▇▇▇▇▇ Brothers Inc., when the Option Corporate PIES are to be
delivered; PROVIDED, HOWEVER, that this date and time shall not be earlier than
the First Delivery Date nor earlier than the second business day after the date
on which the option shall have been exercised nor later than the fifth business
day after the date on which the option shall have been exercised. The date and
time the Option Corporate PIES are delivered are referred to as a "SECOND
DELIVERY DATE" and the First Delivery Date and any Second Delivery Date are
sometimes each referred to as a "DELIVERY DATE".
At 10:00 a.m. Eastern Standard Time on the Second Delivery Date, or at
such other time as shall be determined by agreement between ▇▇▇▇▇▇ Brothers Inc.
and the Company, the Company shall deliver or cause to be delivered, against
payment, the Option Corporate PIES in the form of one or more Global Securities
deposited with the Indenture Trustee, as custodian for DTC, and registered in
the name of Cede & Co., as nominee for DTC, to be held by DTC initially for the
accounts of the several Underwriters. Contemporaneously, ▇▇▇▇▇▇ Brothers Inc.,
on behalf of the several Underwriters, shall make payment of the purchase price
of the Option Corporate PIES by wire transfer, in immediately available funds,
to or upon the order of the Company. Delivery of such Global Securities, as
aforesaid, shall be made at the offices of __________________ specified above.
E-12
Time shall be of the essence, and delivery of Corporate PIES at the
times and place specified in this Agreement are further conditions of the
obligations of each Underwriter hereunder.
5. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND
COMMISSION REQUESTS. To prepare the Prospectus in a form
approved by ▇▇▇▇▇▇ Brothers Inc. and to file such Prospectus
pursuant to Rule 424(b) under the Securities Act not later
than Commission's close of business on the second business day
following the execution and delivery of this Agreement [or, if
applicable, such earlier time as may be required by Rule
430A(a)(3) under the Securities Act]; to make no further
amendment or any supplement to the Registration Statement or
to the Prospectus prior to the last Delivery Date except as
permitted herein; to advise the Underwriters, promptly after
it receives notice thereof, of the time when any amendment to
the Registration Statement has been filed or becomes effective
or any supplement to the Prospectus or any amended Prospectus
has been filed and to furnish the Underwriters with copies
thereof; to file timely all reports and any definitive proxy
or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus is
required in connection with the offering or sale of the
Corporate PIES; to advise the Underwriters, promptly after it
receives notice thereof, of the issuance by the Commission of
any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus, of the
suspension of the qualification of the Corporate PIES for
offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of
the Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any
such qualification, to use promptly its reasonable best
efforts to obtain its withdrawal;
(b) DELIVERY OF REGISTRATION STATEMENTS. To furnish
promptly to the Underwriters and to counsel for the
Underwriters a signed copy of the Registration Statement as
originally filed with the Commission, and each amendment
thereto filed with the Commission, including all consents and
exhibits filed therewith;
(c) DELIVERY OF DOCUMENTS. To deliver promptly to the
Underwriters such number of the following documents as the
Underwriters shall reasonably request: (i) conformed copies of
the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding
exhibits) and (ii) each Preliminary Prospectus, the Prospectus
and any amended or supplemented Prospectus; and, if the
delivery of a prospectus is required at any time after the
Effective Time in connection with the offering or sale of the
E-13
Corporate PIES or any other securities relating thereto and if
at such time any events shall have occurred as a result of
which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary
to amend or supplement the Prospectus in order to comply with
the Securities Act, to notify the Underwriters and, upon their
request, to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as
the Underwriters may from time to time reasonably request of
an amended or supplemented Prospectus which will correct such
statement or omission or effect such compliance;
(d) FILING OF AMENDMENTS. To file promptly with the
Commission any amendment to the Registration Statement or the
Prospectus or any supplement to the Prospectus that may, in
the judgment of the Company or ▇▇▇▇▇▇ Brothers Inc., be
required by the Securities Act or is requested by the
Commission;
(e) DELIVERY TO UNDERWRITERS. Prior to filing with
the Commission any amendment to the Registration Statement or
supplement to the Prospectus or any Prospectus any document
incorporated by reference in the Prospectus pursuant to Rule
424 of the Securities Act, to furnish a copy thereof to the
Underwriters and counsel for the Underwriters and obtain the
consent of ▇▇▇▇▇▇ Brothers Inc. to the filing (which consent
shall not be unreasonably withheld);
(f) EARNING STATEMENT. As soon as practicable after
the Effective Date, to make generally available to the
Company's security holders and to deliver to the Underwriters
an earning statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of
the Securities Act (including, at the option of the Company,
Rule 158 of the Securities Act);
(g) BLUE SKY. Promptly from time to time, to take
such action as ▇▇▇▇▇▇ Brothers Inc. may reasonably request to
qualify the Corporate PIES for offering and sale under the
securities laws of such jurisdictions as ▇▇▇▇▇▇ Brothers Inc.
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
distribution of the Corporate PIES; PROVIDED that, in
connection therewith, the Company shall not be required to
qualify as a foreign corporation or to file a general consent
to service of process in any jurisdiction;
(h) COMPANY REPORTS. For a period of two years
following the First Delivery Date, to furnish to the
Underwriters copies of all materials furnished by the Company
to its stockholders and all public reports and all reports and
financial statements furnished by the Company to the principal
national securities exchange upon which the Common Stock may
be listed pursuant to requirements of or agreements with such
exchange or to the Commission pursuant to the Exchange
E-14
Act; PROVIDED, HOWEVER, that the Company shall not be required
to provide the Underwriters with any such reports or similar
forms that have been filed with the Commission by electronic
transmission pursuant to ▇▇▇▇▇;
(i) LISTING. To use its best efforts to have the
Corporate PIES and the shares of Common Stock to be issued and
sold upon settlement of the Purchase Contracts approved by the
New York Stock Exchange ("NYSE") for listing [prior to the
First Delivery Date] and, if either the Treasury PIES or the
Senior Notes are traded at a volume that satisfies applicable
exchange listing requirements, to use its reasonable best
efforts to list such securities on the national securities
exchanges or associations on which the Corporate PIES are then
listed.
(j) PRICE STABILIZATION. Not to take, directly or
indirectly, any action which is designed to stabilize or
manipulate, or which constitutes or which might reasonably be
expected to cause or result in stabilization or manipulation,
of the price of any security of the Company in connection with
the offering of the Corporate PIES;
(k) DTC. To use its best efforts to cause the
Corporate PIES to be accepted for clearance and settlement
through the facilities of DTC;
(l) USE OF PROCEEDS. To apply the net proceeds from
the issuance of the Corporate PIES as set forth under "Use of
Proceeds" in the Prospectus; and
(m) INVESTMENT COMPANY ACT. To take such steps as
shall be necessary to ensure that neither the Company nor any
of its subsidiaries shall become an "investment company" as
defined, and subject to regulation, under the Investment
Company Act.
(n) RESTRICTION ON SALE OF SECURITIES. Without the
prior written consent of ▇▇▇▇▇▇ Brothers Inc., on behalf of
the Underwriters, the undersigned will not, directly or
indirectly, (i) offer for sale, sell, pledge or otherwise
dispose of (or enter into any transaction or device which is
designed to, or could be expected to, result in the
disposition by any person at any time in the future of) any
shares of Common Stock or any securities convertible into or
exchangeable for Common Stock or substantially similar
securities (other than the shares of Common Stock to be issued
and sold upon settlement of the Purchase Contracts and shares
issued in the ordinary course pursuant to employee benefit
plans, non-employee director plans or the common stock
investment plan or options, warrants or rights outstanding on
the date hereof) or sell or grant options, warrants or rights
with respect to any shares of Common Stock, securities
convertible into or exchangeable for Common Stock or
substantially similar securities (other than the grant of
options, warrants or rights pursuant to option plans existing
on the date hereof), or (ii) enter into any swap or other
derivatives transaction that transfers to another, in whole or
in part, any of the economic benefits or risks of ownership of
such shares of Common Stock, whether any such transaction
described in clause
E-15
(i) or (ii) above is to be settled by delivery of Common Stock
or other securities, in cash or otherwise, for a period of 90
days after the date of the Prospectus.
6. EXPENSES. The Company agrees to pay the following expenses,
whether or not the transactions contemplated by this Agreement are consummated
or this Agreement is terminated (other than pursuant to Section 10):
(a) the costs incident to the authorization,
issuance, sale and delivery of the Corporate PIES and their
components and any taxes payable in that connection;
(b) the costs incident to the preparation, printing
and filing under the Securities Act of the Registration
Statement and any amendments and exhibits thereto;
(c) the costs of distributing the Registration
Statement as originally filed and each amendment thereto and
any post-effective amendments thereof (including, in each
case, exhibits), any Preliminary Prospectus, the Prospectus
and any amendment or supplement to the Prospectus, in each
case, as provided in this Agreement;
(d) the costs of distributing the terms of any
agreement relating to the organization of the underwriting
syndicate and selling group to the members thereof, by mail,
telex or other means of communication;
(e) the filing fees incident to securing any review
by the National Association of Securities Dealers, Inc. of the
terms of sale of the Corporate PIES and any applicable listing
or other fees including all fees and expenses in connection
with the application for the listing on the NYSE of the
Corporate PIES and the shares of Common Stock to be issued and
sold by the Company upon the settlement of the Purchase
Contracts, as well as the fees and expenses in connection with
any application for the listing on any national securities
exchange of the Treasury PIES or the Senior Notes;
(f) the fees and expenses of qualifying the Corporate
PIES and their components under the securities laws of the
several jurisdictions as provided in Section 5(g) and of
preparing, printing and distributing a U.S. and a Canadian
Blue Sky memorandum (including related fees and expenses of
counsel to the Underwriters);
(g) all costs and expenses incident to the
preparation of "road show" presentation or comparable
marketing materials and the road show travelling expenses of
the Company in connection with the offering of the Corporate
PIES;
(h) all fees and expenses incurred in connection with
obtaining ratings of the Corporate PIES by securities rating
agencies;
E-16
(i) all expenses of the Company (including the fees
and disbursements of counsel to the Company) and all fees and
expenses of the Accountants, the Indenture Trustee and the
Purchase Contract Agent (including the costs and charges of
any registrar, transfer agent or paying agent under the
Indenture or the Purchase Contract Agreement), and the
Collateral Agent and the Remarketing Agent; and
(j) all other costs and expenses incident to the
performance of the obligations of the Company under this
Agreement;
PROVIDED THAT, except as provided in this Section 6 and in Section 11 the
Underwriters shall pay their own costs and expenses, including the fees and
disbursements of ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
co-counsel to the Underwriters.
7. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on each Delivery Date, of the representations and warranties of the Company
contained herein, to the performance by the Company of its obligations hereunder
and to each of the following additional terms and conditions:
(a) SEC MATTERS. The Prospectus shall have been
timely filed with the Commission in accordance with Section
5(a) of this Agreement; no stop order suspending the
effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement or the
Prospectus or otherwise shall have been complied with.
(b) NO MISSTATEMENTS OR OMISSIONS. No Underwriter
shall have discovered and disclosed to the Company on or prior
to such Delivery Date that the Registration Statement, the
Prospectus or any amendment or supplement thereto, in the view
of either ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, co-counsel for the Underwriters, contains an untrue
statement of any fact which is material or omits to state a
fact which is material and is required to be stated therein or
is necessary to make the statements therein not misleading.
(c) CORPORATE PROCEEDINGS. All corporate proceedings
and other legal matters incident to the authorization, form
and validity of the Registration Statement, the Prospectus,
the Transaction Agreements, the Corporate PIES, and all other
legal matters relating to the offering, issuance and sale of
the Corporate PIES and the transactions contemplated hereby
and thereby shall be reasonably satisfactory in all material
respects to co-counsel to the Underwriters; and the Company
shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to
pass upon such matters.
(d) LOCK-UP AGREEMENTS. At the date of this
Agreement, the Underwriters shall have received (i) an
agreement substantially in the form of
E-17
Annex A hereto signed by the persons listed on Schedule 2
hereto and (ii) a copy of the waiver by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, as representative of the several
underwriters named in the Purchase Agreement, dated August 9,
2001, among the Company and such underwriters, of the
provisions of Section 3(j) of such Purchase Agreement insofar
as such provisions would prohibit the Company from entering
into the transactions contemplated by this Agreement.
(e) OPINIONS OF COUNSEL FOR COMPANY. ▇▇▇▇▇▇ Hall &
▇▇▇▇▇▇▇, special counsel to the Company, and ▇▇▇▇▇▇▇▇ and
Wedge, Nevada counsel to the Company, shall have furnished to
the Underwriters their written opinions, as counsel to the
Company, addressed to the Underwriters and dated such Delivery
Date, in form and substance reasonably satisfactory to ▇▇▇▇▇▇
Brothers Inc. and substantially to the effect set forth in the
composite form of opinion contained in Annex B.
(f) OPINION OF COUNSEL FOR PURCHASE CONTRACT AGENT
AND INDENTURE TRUSTEE. ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the
Purchase Contract Agent and the Indenture Trustee Agent, shall
have furnished to the Underwriters their written opinion
addressed to the Underwriters and dated such Delivery Date, in
form and substance reasonably satisfactory to ▇▇▇▇▇▇ Brothers
Inc. and substantially to the effect set forth in Annex C.
(g) OPINION OF COUNSEL FOR COLLATERAL AGENT AND
SECURITIES INTERMEDIARY. ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the
Collateral Agent and the Securities Intermediary, shall have
furnished to the Underwriters their written opinion addressed
to the Underwriters and dated such Delivery Date, in form and
substance reasonably satisfactory to ▇▇▇▇▇▇ Brothers Inc. and
substantially to the effect set forth in Annex D.
(h) OPINIONS OF COUNSEL FOR UNDERWRITERS. ▇▇▇▇▇▇ ▇▇▇▇
& Priest LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ shall have
furnished to the Underwriters their written opinions, as
counsel to the Underwriters, addressed to the Underwriters and
dated such Delivery Date, in form and substance reasonably
satisfactory to ▇▇▇▇▇▇ Brothers Inc.
(i) ACCOUNTANTS' COMFORT LETTER. The Underwriters
shall have received from the Accountants a letter, in form and
substance reasonably satisfactory to ▇▇▇▇▇▇ Brothers Inc.,
addressed to the Underwriters and dated such Delivery Date and
substantially to the effect set forth in Annex E.
(j) OFFICERS' CERTIFICATES. The Company shall have
furnished to the Underwriters a certificate, dated such
Delivery Date, of the President or any Vice President of the
Company together with its chief financial officer, in form and
substance reasonably satisfactory to ▇▇▇▇▇▇ Brothers Inc.
stating that:
E-18
(i) the representations, warranties and
agreements of the Company in Section 1 of this
Agreement are true and correct as of the date of this
Agreement and as of such Delivery Date; the Company
has complied in all material respects with all its
agreements contained herein to be performed prior to
or on such Delivery Date; and no stop order
suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no
proceeding for that purpose has been initiated or
threatened by the Commission;
(ii) since the respective dates as of which
information is given in the Prospectus and other than
as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the
date of this Agreement), (A) there has not occurred
any Material Adverse Change or any development that
is reasonably likely to result in a Material Adverse
Change, (B) there has not been any change in the
capital stock, the short-term debt, or the long-term
debt of the Company or any of its subsidiaries that
is reasonably likely to result in a Material Adverse
Effect, (C) neither the Company nor any of its
subsidiaries has incurred any liability or
obligation, direct or contingent, which is material
with respect to the Company and its subsidiaries
considered as a whole and (D) no Material Loss has
occurred; and
(iii) they have carefully examined the
Registration Statement and the Prospectus and, in
their opinion (A) as of the Effective Date, the
Registration Statement and Prospectus did not include
any untrue statement of a material fact and did not
omit to state a material fact required to be stated
therein or necessary to make the statements therein
not misleading and (B) since the Effective Date no
event has occurred which should have been set forth
in a supplement or amendment to the Registration
Statement or the Prospectus.
(k) SENIOR NOTES. The Senior Notes shall have been
duly executed and delivered by the Company and duly
authenticated by the Indenture Trustee.
(l) CORPORATE PIES. The Corporate PIES and the
Treasury PIES shall have been duly executed and delivered by
the Company and duly authenticated by the Purchase Contract
Agent.
(m) OTHER INFORMATION. The Company shall have
furnished to the Underwriters such further information,
certificates and documents as the Underwriters may reasonably
request to evidence compliance with the conditions set forth
in this Section 7.
(n) NO MATERIAL ADVERSE DEVELOPMENTS. Except as
disclosed in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement),
(A) neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial
statements
E-19
incorporated by reference in the Prospectus any loss or
interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or
decree and (B) since such date there shall not have been any
change or any development reasonably likely result in a
change, in or affecting the business, general affairs,
management, condition (financial or otherwise), stockholders'
equity or results of operations of the Company and its
subsidiaries, the effect of which, in any such case described
in clause (A) or (B), is, in the judgment of ▇▇▇▇▇▇ Brothers
Inc., so material (with respect to the Company and its
subsidiaries taken as a whole) and adverse as to make it
impracticable or inadvisable to proceed with the public
offering or the delivery of the Corporate PIES being delivered
on the applicable Delivery Date on the terms and in the manner
contemplated in the Prospectus and this Agreement.
(o) NO DOWNGRADE. Subsequent to the execution and
delivery of this Agreement, (i) no downgrading shall have
occurred in the rating accorded the debt securities or
preferred stock of the Company or any of its Significant
Subsidiaries by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) of the Securities Act and (ii) no
such organization shall have publicly announced, or privately
informed the Company, that it has under surveillance or
review, with possible negative implications, its rating of any
of the Company's debt securities or preferred stock.
(p) GENERAL MARKET OUT. Subsequent to the execution
and delivery of this Agreement, there shall not have occurred
any of the following: (i) trading in securities generally on
the
New York Stock Exchange, the American Stock Exchange, the
NASDAQ or the over-the-counter market, or trading in any
securities of the Company on any exchange, shall have been
suspended or the settlement of such trading generally shall
have been materially disrupted or minimum prices shall have
been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body
or governmental authority having jurisdiction, (ii) a banking
moratorium shall have been declared by Federal or state
authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United
States, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in
hostilities involving the United States, there shall have been
a declaration of a national emergency or war by the United
States, an act of terrorism shall have been committed against
the United States or any of its nationals or properties or
(iv) there shall have occurred such a calamity or crisis or
such a material adverse change in general domestic or
international economic, political or financial conditions,
including without limitation as a result of terrorist
activities (or the effect of international conditions on the
financial markets in the United States shall be such) as to
make it, in the judgment of ▇▇▇▇▇▇ Brothers Inc.,
impracticable or inadvisable to proceed with the public
offering or delivery of the Corporate PIES being delivered on
such Delivery Date on the terms and in the manner contemplated
in the Prospectus.
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All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably
satisfactory to counsel to the Underwriters.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION OF UNDERWRITERS. The Company
shall indemnify and hold harmless each Underwriter, its
officers and employees, each of its directors, and each
person, if any, who controls any Underwriter within the
meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in
respect thereof (including, but not limited to, any loss,
claim, damage, liability or action relating to purchases and
sales of the Corporate PIES), to which that Underwriter,
officer, employee or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based
upon, (i) any untrue statement or alleged untrue statement of
a material fact contained in any (A) Preliminary Prospectus,
the Registration Statement or the Prospectus or in any
amendment or supplement thereto, or (B) any blue sky
application or other document prepared or executed by the
Company (or based upon any written information furnished by
the Company) filed in any jurisdiction specifically for the
purpose of qualifying any or all of the Corporate PIES under
the securities laws of any state or other jurisdiction (such
application, document or information being hereinafter called
a "BLUE SKY APPLICATION"), (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the
Registration Statement, the Prospectus, or in any amendment or
supplement thereto or in any Blue Sky Application any material
fact required to be stated therein or necessary to make the
statements therein not misleading or (iii) any act or failure
to act or any alleged act or failure to act by any Underwriter
in connection with, or relating in any manner to, the
Corporate PIES or the offering contemplated hereby, and which
is included as part of or referred to in any loss, claim,
damage, liability or action arising out of or based upon
matters covered by clause (i) or (ii) above (PROVIDED that,
the Company shall not be liable under this clause (iii) to the
extent that it is determined in a final judgment by a court of
competent jurisdiction that such loss, claim, damage,
liability or action resulted directly from any such acts or
failure to act undertaken or omitted to be taken by such
Underwriter through its gross negligence or willful
misconduct), and shall reimburse each Underwriter and each
such officer, employee, director or controlling person
promptly upon demand for any legal or other expenses
reasonably incurred by that Underwriter, officer, employee or
controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred;
provided, however, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any such
amendment or supplement, in reliance upon and in conformity
with the written information concerning such Underwriter
furnished to the Company through
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▇▇▇▇▇▇ Brothers Inc. by or on behalf of any Underwriter
specifically for inclusion therein which information consists
solely of the information specified in Section 8(e); and
provided, further, that the Company shall not be liable to
indemnify any Underwriter or any person who controls such
Underwriter on account of any such loss, liability, claim,
damage or expense arising out of any such defect or alleged
defect in any Preliminary Prospectus if a copy of the
Prospectus (exclusive of the Incorporated Documents) shall not
have been given or sent by such Underwriter with or prior to
the written confirmation of the sale involved to the extent
that (i) the Prospectus would have cured such defect or
alleged defect and (ii) sufficient quantities of the
Prospectus were timely made available to such Underwriter. The
foregoing indemnity agreement is in addition to any liability
which the Company may otherwise have to any Underwriter or to
any officer, employee or controlling person of that
Underwriter.
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND
OFFICERS. Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, its officers and
employees, each of its directors, and each person, if any, who
controls the Company within the meaning of the Securities Act
from and against any loss, claim, damage or liability, joint
or several, or any action in respect thereof, to which the
Company or any such director, officer or controlling person
may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto or in any
Blue Sky Application or (ii) the omission or alleged omission
to state in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or in any amendment or supplement
thereto or in any Blue Sky Application, any material fact
required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to
the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance
upon and in conformity with the written information furnished
to the Company through ▇▇▇▇▇▇ Brothers Inc. by or on behalf of
that Underwriter specifically for inclusion therein and
described in Section 8(c), and shall reimburse the Company and
any such director, officer or controlling person promptly upon
demand for any legal or other expenses reasonably incurred by
the Company or any such director, officer or controlling
person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability
which any Underwriter may otherwise have to the Company or any
such director, officer, employee or controlling person.
(c) NOTIFICATION; ACTION AGAINST PARTIES; SETTLEMENT
WITHOUT CONSENT IF FAILURE TO REIMBURSE. Promptly after
receipt by an indemnified party under this Section 8 of notice
of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to
be made against the indemnifying party under this Section 8,
notify the indemnifying party in writing
E-22
of the claim or the commencement of that action; PROVIDED,
HOWEVER, that the failure to notify the indemnifying party
shall not relieve it from any liability which it may have
under this Section 8 except to the extent it has been
materially prejudiced by such failure and, PROVIDED, FURTHER,
that the failure to notify the indemnifying party shall not
relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 8. If any
such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein
and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense
thereof with counsel satisfactory to the indemnified party.
After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the
indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable
costs of investigation; PROVIDED, HOWEVER, that the
Underwriters shall have the right to employ separate counsel
to represent jointly the Underwriters and their respective
officers, employees and controlling persons who may be subject
to liability arising out of any claim in respect of which
indemnity may be sought by the Underwriters against the
Company under this Section 8 if, in the reasonable judgment of
such Underwriters, it is advisable for such Underwriters,
officers, employees and controlling persons to be jointly
represented by separate counsel, and in that event the fees
and expenses of such separate counsel shall be paid by the
Company. No indemnifying party shall, (i) without the prior
written consent of the indemnified parties (which consent
shall not be unreasonably withheld), settle or compromise or
consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual
or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding, or (ii) be
liable for any settlement of any such action effected without
its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there
be a final judgment of the plaintiff in any such action, the
indemnifying party shall indemnify and hold harmless any
indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(d) CONTRIBUTION. If the indemnification provided for
in this Section 8 shall for any reason be unavailable or
insufficient to hold harmless an indemnified party under
Section 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such
loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering
of the Corporate PIES or (ii) if the allocation provided by
clause (i) above is not permitted by applicable
E-23
law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and the
Underwriters on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters
on the other with respect to such offering shall be deemed to
be in the same proportion as the total net proceeds from the
offering of the Corporate PIES purchased under this Agreement
(before deducting expenses) received by the Company, on the
one hand, and the total underwriting discounts and commissions
received by the Underwriters with respect to the Corporate
PIES purchased under this Agreement, on the other hand, bear
to the total gross proceeds from the offering of the Corporate
PIES under this Agreement, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault
shall be determined by reference to whether the untrue or
alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters, the
intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree
that it would not be just and equitable if contributions
pursuant to this Section 8(d) were to be determined by pro
rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation
which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in
this Section shall be deemed to include, for purposes of this
Section 8(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Underwriter shall be
required to contribute any amount in excess of the amount by
which the total price at which the Corporate PIES underwritten
by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has
otherwise paid or become liable to pay by reason of any untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters'
obligations to contribute as provided in this Section 8(d) are
several in proportion to their respective underwriting
obligations and not joint.
(e) INFORMATION FURNISHED BY UNDERWRITERS. The
Underwriters severally confirm that the statements in the last
paragraph on the cover page of the Prospectus and the third,
seventh, eighth, eleventh and fifteenth paragraphs under the
caption "Underwriting" in the Prospectus are correct; and the
Underwriters severally further confirm, and the Company
acknowledges, that such statements constitute the only
information concerning such Underwriters furnished in writing
to the Company through ▇▇▇▇▇▇ Brothers Inc. by or on behalf of
the
E-24
Underwriters specifically for inclusion in the Registration
Statement and the Prospectus.
9. DEFAULTING UNDERWRITERS. If, on any Delivery Date, any
Underwriter defaults in the performance of its obligations under this Agreement,
the remaining non-defaulting Underwriters shall be obligated to purchase the
principal amount of Corporate PIES which the defaulting Underwriter agreed but
failed to purchase on such Delivery Date in the respective proportions which the
principal amount of the Firm Corporate PIES set forth opposite the name of each
remaining non-defaulting Underwriter in Schedule 1 hereto bears to the aggregate
principal amount of Firm Corporate PIES set forth opposite the names of all the
remaining non-defaulting Underwriters in Schedule 1 hereto; PROVIDED, HOWEVER,
that the remaining non-defaulting Underwriters shall not be obligated to
purchase any of the Corporate PIES on such Delivery Date if the total aggregate
principal amount of the Corporate PIES which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such date exceeds 9.09% of the
total aggregate principal amount of the Corporate PIES to be purchased on such
Delivery Date, and any remaining non-defaulting Underwriter shall not be
obligated to purchase more than 110% of the total aggregate principal amount of
the Corporate PIES which it agreed to purchase on such Delivery Date pursuant to
the terms of Section 3. If the foregoing maximums are exceeded, the remaining
non-defaulting Underwriters, or those other underwriters satisfactory to ▇▇▇▇▇▇
Brothers Inc. who so agree, shall have the right, but shall not be obligated, to
purchase, in such proportion as may be agreed upon among them, the total
aggregate principal amount of Corporate PIES to be purchased on such Delivery
Date. If the remaining Underwriters or other underwriters satisfactory to ▇▇▇▇▇▇
Brothers Inc. do not elect to purchase on such Delivery Date the aggregate
principal amount of Corporate PIES which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such Delivery Date, this Agreement
(or, with respect to the Option Delivery Date, the obligation of the
Underwriters to purchase, and of the Company to sell, the Option Corporate PIES)
shall terminate without liability on the part of any non-defaulting Underwriter
or the Company, except that the Company will continue to be liable for the
payment of expenses to the extent set forth in Sections 6 and 11. As used in
this Agreement, the term "Underwriter" includes, for all purposes of this
Agreement unless the context requires otherwise, any party not listed in
Schedule 1 hereto who, pursuant to this Section 9, purchases Corporate PIES
which a defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused by
its default. If other underwriters are obligated or agree to purchase the
Corporate PIES of a defaulting or withdrawing Underwriter, either ▇▇▇▇▇▇
Brothers Inc. or the Company may postpone the Delivery Date for up to seven full
business days in order to effect any changes that in the opinion of counsel to
the Company or counsel for the Underwriters may be necessary in the Registration
Statement, the Prospectus or in any other document or arrangement.
10. TERMINATION. The obligations of the Underwriters hereunder
may be terminated by the Underwriters by notice given to and received by the
Company prior to delivery of and payment for the Corporate PIES if, prior to
that time, any of the events described in Sections 7(n), 7(o) or 7(p) shall have
occurred or if the Underwriters shall decline to purchase the Firm Corporate
PIES for any reason permitted under this Agreement.
E-25
11. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If (a) the
Company shall fail to tender the Corporate PIES for delivery to the Underwriters
by reason of any failure, refusal or inability on the part of the Company to
perform any agreement on its part to be performed, or because any other
condition of the Underwriters' obligations hereunder required to be fulfilled by
the Company (including, without limitation, with respect to the transactions) is
not fulfilled or (b) the Underwriters shall decline to purchase the Corporate
PIES for any reason permitted under this Agreement (including the termination of
this Agreement pursuant to Section 10), the Company shall reimburse the
Underwriters for all reasonable out-of-pocket expenses (including fees and
disbursements of counsel) incurred by the Underwriters in connection with this
Agreement and the proposed purchase of the Corporate PIES, and upon demand the
Company shall pay the full amount thereof to the Underwriters. If this Agreement
is terminated pursuant to Section 9 by reason of the default of one or more
Underwriters, the Company shall not be obligated to reimburse any defaulting
Underwriter on account of those expenses.
12. NOTICES, ETC. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or
sent by mail, telex or facsimile transmission to ▇▇▇▇▇▇
Brothers Inc., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇,
Attention: Syndicate Department (Fax: ▇▇▇-▇▇▇-▇▇▇▇), with a
copy, in the case of any notice pursuant to Section 8(c), to
the ▇▇▇▇▇▇ Brothers Inc., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇, Attention: Office of the General Counsel (Fax:
650-321-2207) with copies to ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, ▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: J. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, Esq. (Fax: ▇▇▇-▇▇▇-▇▇▇▇; Telephone: ▇▇▇-▇▇▇-▇▇▇▇) and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. (Fax:
▇▇▇-▇▇▇-▇▇▇▇; Telephone: ▇▇▇-▇▇▇-▇▇▇▇);
(b) if to the Company, shall be delivered or sent by
mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement, Attention:
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, (Fax: ▇▇▇-▇▇▇-▇▇▇▇) Telephone:
(775-834-5640); with a copy to ▇▇▇▇▇▇ Hall & ▇▇▇▇▇▇▇, Exchange
Place, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. (Fax: ▇▇▇-▇▇▇-▇▇▇▇;
Telephone: ▇▇▇-▇▇▇-▇▇▇▇);
PROVIDED, HOWEVER, that any notice to an Underwriter pursuant to Section 8(c)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to ▇▇▇▇▇▇ Brothers
Inc., which address will be supplied to any other party hereto by ▇▇▇▇▇▇
Brothers Inc. upon request. Any such statements, requests, notices or agreements
shall take effect at the time of receipt thereof. The Company shall be entitled
to act and rely upon any request, consent, notice or agreement given or made on
behalf of the Underwriters by ▇▇▇▇▇▇ Brothers Inc.
13. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement
shall inure to the benefit of and be binding upon the Underwriters, the Company,
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the
E-26
Company contained in this Agreement shall also be deemed to be for the benefit
of the directors, officers and employees of the Underwriters and the person or
persons, if any, who control any Underwriter within the meaning of Section 15 of
the Securities Act and (B) any indemnity agreement of the Underwriters contained
in Section 8(b) of this Agreement shall be deemed to be for the benefit of
directors, officers and employees of the Company, and any person controlling the
Company within the meaning of Section 15 of the Securities Act. Nothing in this
Agreement is intended or shall be construed to give any person, other than the
persons referred to in this Section 13, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
14. SURVIVAL. The respective indemnities, representations,
warranties and agreements of the Company and the Underwriters contained in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Corporate PIES and
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
of them or any person controlling any of them.
15. DEFINITION OF THE TERM "BUSINESS DAY". For purposes of
this Agreement, "BUSINESS DAY" means any day on which the
New York Stock
Exchange, Inc. is open for trading.
16. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of
New York.
17. CONSENT TO JURISDICTION . Each of the Underwriters and the
Company hereby submits to the jurisdiction of the courts of the State of
New
York and the courts of the United States of America located in the State of
New
York over any suit, action or proceeding with respect to this Agreement or the
transactions contemplated hereby.
18. COUNTERPARTS. This Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
19. HEADINGS. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
20. UNDERWRITERS' COUNSEL. The Company and the Underwriters
acknowledge that ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP (a) has acted or will act as counsel
to the Underwriters in connection with this agreement and the transactions
contemplated hereby and (b) has acted, and will continue to act, as counsel to
Sierra Pacific Resources and its utility subsidiaries in connection with certain
federal income tax matters, and each of the Company and the Underwriters
consents to such dual representation.
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If the foregoing correctly sets forth the agreement between the Company
and the Underwriters, please indicate your acceptance in the space provided for
that purpose below.
Very truly yours,
SIERRA PACIFIC RESOURCES
By:
------------------------------------
Name:
Title:
Accepted:
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇▇▇▇▇▇▇ SACHS & CO.
FIRST UNION SECURITIES, INC.
By ▇▇▇▇▇▇ BROTHERS INC.
By:
------------------------------------------
AUTHORIZED REPRESENTATIVE
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