Exhibit 1.1
CONTROLLED EQUITY OFFERING(SM)
SALES AGREEMENT
December 17, 2002
CANTOR XXXXXXXXXX & CO.
000 Xxxx 00 Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs/Ladies:
Peoples Energy Corporation, an Illinois corporation (the "COMPANY"),
confirms its agreement ("Agreement") with Cantor Xxxxxxxxxx & Co. ("CF&CO"), as
follows:
1. ISSUANCE AND SALE OF SHARES. The Company agrees that, from time to
time during the term of this Agreement, on the terms and subject to the
conditions set forth herein, it will issue and sell through CF&Co, acting as
agent and/or principal, up to 1,500,000 shares (the "SHARES") of the Company's
common stock, without par value ("COMMON STOCK"). Notwithstanding anything to
the contrary contained herein, the parties hereto agree that compliance with the
limitations set forth in this Section 1 on the number of Shares issued and sold
under this Agreement shall be the sole responsibility of the Company, and CF&Co
shall have no obligation in connection with such compliance. The issuance and
sale of Shares through CF&Co will be effected pursuant to a registration
statement on Form S-3 filed by the Company and declared effective by the
Securities and Exchange Commission (the "COMMISSION").
2. PLACEMENTS. Each time that the Company wishes to issue and sell
Shares hereunder (each, a "PLACEMENT"), it will notify CF&Co of the proposed
terms of such Placement. If CF&Co wishes to accept such proposed terms (which it
may decline to do for any reason in its sole discretion) or, following
discussions with the Company, wishes to accept amended terms, CF&Co will, prior
to 4:30 p.m. (eastern time) on the Business Day following the Business Day on
which such notice is delivered to CF&Co, issue to the Company a written notice
setting forth the terms that CF&Co is willing to accept, including without
limitation the number of Shares ("PLACEMENT SHARES") to be issued, the manner(s)
in which sales are to be made, the date or dates on which such sales are
anticipated to be made, any minimum price below which sales may not be made, and
the capacity in which CF&Co may act in selling Shares hereunder (as principal,
agent or both) (a "PLACEMENT NOTICE"), the form of which is attached hereto as
SCHEDULE 1. The amount of compensation to be paid by the Company to CF&Co shall
be two percent (2%) of gross proceeds of sales actually effected in accordance
with the terms of the relevant Placement Notice. The terms set forth in a
Placement Notice will not be binding on the Company or CF&Co unless and until
the Company delivers written notice of its acceptance of all of the terms of
such Placement Notice (an "ACCEPTANCE") prior to 4:30 p.m. (New York time) on
the Business Day following the Business Day on which such Placement Notice is
delivered to the Company. It is expressly acknowledged and agreed that neither
the Company nor CF&Co will have any
obligation whatsoever with respect to a Placement or any Placement Shares unless
and until CF&Co delivers a Placement Notice to the Company and the Company
accepts such Placement Notice by means of an Acceptance, and then only upon the
terms specified therein and herein. In the event of a conflict between the terms
of this Agreement and the terms of a Placement Notice, the terms of the
Placement Notice will control.
3. SALE OF PLACEMENT SHARES BY CF&CO. Subject to the terms and
conditions of this Agreement, upon the Acceptance of a Placement Notice, and
unless the sale of the Placement Shares described therein has been suspended or
otherwise terminated in accordance with the terms of this Agreement, CF&Co will
use its commercially reasonable efforts consistent with its normal trading and
sales practices to sell such Placement Shares up to the amount specified, and
otherwise in accordance with the terms of such Placement Notice. CF&Co will
provide written confirmation to the Company no later than the opening of the
Trading Day next following the Trading Day on which it has made sales of
Placement Shares hereunder setting forth the number of Placement Shares sold on
such day, the compensation payable by the Company to CF&Co with respect to such
sales, and the Net Proceeds (as defined below) payable to the Company. CF&Co may
sell any Placement Shares in privately negotiated transactions and/or any other
method permitted by law deemed to be an "at the market" offering as defined in
Rule 415 of the Securities Act of 1933, as amended (the "Act"), including sales
be made directly on the New York Stock Exchange, the existing trading market for
the Common Stock or sales made to or through a market maker or through an
electronic communications network. The Company acknowledges and agrees that (i)
there can be no assurance that CF&Co will be successful in selling Placement
Shares, and (ii) CF&Co will incur no liability or obligation to the Company or
any other person or entity if it does not sell Placement Shares for any reason
other than a failure by CF&Co to use its commercially reasonable efforts
consistent with its normal trading and sales practices to sell such Placement
Shares as required under this Section 3. For the purposes hereof, "TRADING DAY"
means any day on which Common Stock is purchased and sold on the principal
market on which the Common Stock is listed or quoted.
4. SUSPENSION OF SALES. The Company or CF&Co may, upon notice to the
other party in writing or by telephone (confirmed immediately by verifiable
facsimile transmission), suspend any sale of Placement Shares; provided,
however, that such suspension shall not affect or impair either party's
obligations with respect to any Placement Shares sold hereunder prior to the
receipt of such notice. The Company agrees that no such notice shall be
effective against CF&Co unless it is made to one of the individuals named on
Schedule 2 hereto, as such Schedule may be amended from time to time. CF&Co
agrees that no such notice shall be effective against the Company unless it is
made to one of the individuals named on Schedule 2 annexed hereto, as such
Schedule may be amended from time to time.
5. SETTLEMENT.
(a) SETTLEMENT OF PLACEMENT SHARES. Unless otherwise specified in the
applicable Placement Notice, settlement for sales of Placement Shares will occur
on the third (3rd) Business Day (or such earlier day as is industry practice for
regular-way trading) following the date on which such sales are made (each a
"SETTLEMENT DATE"). The amount of proceeds to be delivered to the Company on a
Settlement Date against the receipt of the Placement Shares sold ("NET
PROCEEDS") will be equal to the aggregate sales price at which such Placement
Shares were sold,
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after deduction for (i) CF&Co's commission, discount, or other compensation for
such sales payable by the Company pursuant to Section 2 hereof, (ii) any other
amounts due and payable by the Company to CF&Co hereunder pursuant to Section
7(h) hereof, and (iii) any transaction fees imposed by any governmental or
self-regulatory organization in respect of such sales.
(b) DELIVERY OF SHARES. On or before each Settlement Date, the Company
will, or will cause its transfer agent to, electronically transfer the Placement
Shares being sold by crediting CF&Co's or its designee's account at The
Depository Trust Company through its Deposit Withdrawal Agent Commission System,
or by such other means of delivery as may be mutually agreed upon by the parties
hereto and, upon receipt of such Placement Shares, which in all cases shall be
freely tradeable, transferable, registered shares in good deliverable form,
CF&Co will deliver the related Net Proceeds in same day funds delivered to an
account designated by the Company prior to the Settlement Date. If the Company
defaults in its obligation to deliver Placement Shares on a Settlement Date, the
Company agrees that in addition to and in no way limiting the rights and
obligations set forth in Section 9(a) hereto, it will (i) hold CF&Co harmless
against any loss, claim, damage, or expense (including reasonable legal fees and
expenses), as incurred, arising out of or in connection with such default by the
Company and (ii) pay to CF&Co any commission, discount, or other compensation to
which it would otherwise have been entitled absent such default.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, CF&Co that:
(a) The Common Stock is registered pursuant to Section 12(g) or 12(b)
of the Exchange Act (as hereinafter defined) and the Company has filed all
reports, schedules, forms, statements and other documents required to be filed
by it with the Commission (the "COMMISSION DOCUMENTS") for at least two (2)
years, and all of such filings have been made on a timely basis. The Common
Stock is currently listed and quoted on the New York Stock Exchange under the
trading symbol "PGL". The Company meets the requirements of Form S-3 under the
Act and the rules and regulations thereunder ("RULES AND REGULATIONS") including
but not limited to the transactions requirements for a primary offering. The
Company has filed a registration statement on Form S-3 (Registration Statement
No. 333-84594) with respect to an aggregate of $500,000,000 of securities of the
Company (as amended or supplemented, the "REGISTRATION STATEMENT"), including
the form of prospectus contained therein (as amended or supplemented, the "BASE
PROSPECTUS"). A prospectus supplement (the "PROSPECTUS SUPPLEMENT" and together
with the Base Prospectus and all documents heretofore and hereafter filed
with the Commission and incorporated therein by reference, the "PROSPECTUS")
relating to the Shares will be prepared and filed with the Commission in
accordance with the requirements of the Act. The Registration Statement and
Prospectus will be prepared by the Company in conformity with the
requirements of the Act and the Rules and Regulations and filed with the
Commission, and the Company will use its reasonable best efforts to cause any
subsequent amendment or supplement to become effective as soon as reasonably
practicable. Any amendment or supplement to the Registration Statement or
Prospectus required by this Agreement will be so prepared and filed by the
Company, and the Company will use its reasonable best efforts to cause it to
become effective as soon as reasonably practicable. No stop order suspending
the effectiveness of the Registration Statement has been issued, and no
proceeding for that purpose has been instituted or threatened by the
Commission. Copies of all
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filings made by the Company under the Act and all Commission Documents that were
filed with the Commission on or prior to the date of this Agreement and
incorporated by reference in the Registration Statement have been delivered to
CF&Co. Any reference herein to the Registration Statement, the Prospectus, or
any amendment or supplement thereto, shall be deemed to refer to and include the
documents incorporated (or deemed to be incorporated) by reference therein, and
any reference herein to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement or Prospectus shall be deemed to refer to
and include the filing after the execution hereof of any document with the
Commission deemed to be incorporated by reference therein.
(b) Each part of the Registration Statement, when such part became or
becomes effective, and the Prospectus, on the date of filing thereof with the
Commission and at each Settlement Date, conformed or will conform with the
requirements of the Act and the Rules and Regulations; each part of the
Registration Statement, when such part became or becomes effective, did not or
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and the Prospectus, on the date of filing thereof with
the Commission and at each Settlement Date, did not or will not include an
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; except that the foregoing shall not apply to
statements or omissions in any such document made in reliance on information
furnished to the Company by CF&Co specifically stating that it is intended for
use in the Registration Statement, the Prospectus, or any amendment or
supplement thereto.
(c) The documents incorporated by reference in the Registration
Statement or the Prospectus, or any amendment or supplement thereto (the
"DISCLOSURE DOCUMENTS"), when they became effective under the Act or were filed
with the Commission under the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), as the case may be, conformed with the requirements of the Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the Prospectus or
any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will conform to
the requirements of the Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
except that the foregoing will not apply to statements or omissions in any such
document made in reliance on information furnished to the Company by CF&Co
specifically stating that it is intended for use in any such document.
(d) The consolidated financial statements and financial schedules of
the Company and its subsidiaries, together with the related notes set forth or
incorporated by reference in the Registration Statement and Prospectus, have
been and will be prepared in accordance with Regulation S-X under the Act and
with generally accepted accounting principles consistently applied throughout
the periods involved (except (i) as may be otherwise indicated in such
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financial statements or the notes thereto, or (ii) in the case of unaudited
interim statements, to the extent they may exclude footnotes or may be condensed
or summary statements) and fairly present and will fairly present the financial
position of the Company as of the dates thereof and the results of its
operations and cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal year-end adjustments).
(e) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the state of Illinois with full
power and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and Prospectus; and the
Company is duly qualified as a foreign entity to transact business and is in
good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure, individually or in the aggregate, to be so
qualified and be in good standing would not have a material adverse effect on
(i) the consolidated business, operations, properties, financial condition,
reputation, prospects or results of operations of the Company and the
Significant Subsidiaries taken as a whole, (ii) the transactions contemplated
hereby, (iii) the Shares or (iv) the ability of the Company to perform its
obligations under this Agreement (collectively, a "MATERIAL ADVERSE EFFECT").
(f) Each Significant Subsidiary (as defined in Rule 1-02 of Regulation
S-X) of the Company has been duly incorporated or duly organized and is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation or organization, has corporate power and authority to own,
lease and operate its properties and conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to be so qualified would not be
reasonably likely to cause a Material Adverse Effect.
(g) Except as set forth in the Prospectus, each of the Company and its
Significant Subsidiaries has (i) good and marketable title to all of the
properties and assets owned by it, free and clear of all liens, charges, claims,
security interests or encumbrances (collectively, "ENCUMBRANCES"), other than
Encumbrances that would not be reasonably likely to cause a Material Adverse
Effect, and (ii) possession under all leases to which it is party as lessee. All
leases to which the Company or any of its subsidiaries is a party are valid and
binding and no material default has occurred and is continuing thereunder, and
no event or circumstance that with the passage of time or giving of notice, or
both, would constitute such a material default has occurred and is continuing,
and, to the best knowledge of the Company, no defaults by the landlord exist
under any such leases.
(h) The Company has an authorized capitalization as set forth in its
most recent Annual Report on Form 10-K and will have an authorized
capitalization as set forth in the Prospectus, and all of the issued shares of
capital stock of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable and have been issued in compliance with
all applicable federal and state securities laws and all of the issued shares of
capital stock of each Significant Subsidiary have been duly and validly
authorized and issued and are fully paid and non-assessable and the shares of
such Significant Subsidiary are owned directly or indirectly by the Company, are
held free and clear of all Encumbrances.
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(i) The Placement Shares have been duly authorized and, when issued,
delivered and paid for pursuant to this Agreement, will be validly issued and
fully paid and non-assessable, free and clear of all Encumbrances and will be
issued in compliance with all applicable federal and state securities laws. The
Placement Shares conform to the description thereof contained in the
Registration Statement and the Placement Shares will conform to the description
thereof contained in the Prospectus as amended or supplemented. Neither the
shareholders of the Company, nor any other person or entity have any preemptive
rights or rights of first refusal with respect to the Placement Shares or other
rights to purchase or receive any of the Placement Shares or any other
securities or assets of the Company, and no person has the right, contractual or
otherwise, to cause the Company to issue to it, or register pursuant to the Act,
any shares of capital stock or other securities or assets of the Company upon
the issuance or sale of the Placement Shares.
(j) Except as set forth in the Prospectus: (i) neither the Company
nor any of its subsidiaries has sustained since the date of the latest
Disclosure Document included or incorporated by reference in the Prospectus,
any material loss or interference with the business of the Company and its
subsidiaries, taken as a whole, including without limitation, 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;
(ii) neither the Company nor any of its subsidiaries has incurred any
liabilities or obligations, direct or contingent, or entered into any
transactions, not in the ordinary course of business, that are material to
the Company and its subsidiaries taken as a whole, and (iii) there has not
been any material change, on a consolidated basis, in the authorized capital
stock of the Company and its Significant Subsidiaries, any material increase
in the short-term debt or long-term debt of the Company and its Significant
Subsidiaries, on a consolidated basis, or any Material Adverse Effect, or any
development reasonably likely to cause a Material Adverse Effect.
(k) On the date hereof, and except as set forth in the Prospectus,
there is no claim, litigation or administrative proceeding or inquiry pending,
or, to the Company's knowledge, threatened against the Company or any
Significant Subsidiary, or, to the Company's knowledge, against any officer,
director or employee of the Company or any such Significant Subsidiary in
connection with such person's employment therewith that, individually or in the
aggregate, would be reasonably expected to have a Material Adverse Effect.
Except as set forth in the Prospectus, neither the Company nor any Significant
Subsidiary is a party to or subject to the provisions of, any order, writ,
injunction, judgment or decree of any court or government agency or
instrumentality, that would be reasonably expected to have a Material Adverse
Effect.
(l) Subject to approval of the terms of each Placement Notice by the
Company, all necessary action has been duly and validly taken by the Company to
authorize the Company's execution, delivery and performance of this Agreement.
This Agreement has been duly and validly authorized, executed and delivered by
the Company and constitutes the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except as
the enforceability thereof may be limited by bankruptcy, insolvency,
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reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether applied
in a proceeding in law or equity).
(m) Neither the Company nor any of its subsidiaries is in violation of
any provisions of its charter, bylaws or any other governing document as amended
and in effect on and as of the date hereof or in default (and no event has
occurred which, with notice or lapse of time or both, would constitute a
default) under any indenture, mortgage, deed of trust, loan or credit agreement
or any provision of any material instrument or contract to which it is a party
or by which it is bound other than with respect to, in the case of a subsidiary
of the Company, any such violation or default that would not be reasonably
likely to cause a Material Adverse Effect.
(n) Executing and delivering this Agreement and the issuance and sale
of the Placement Shares and the compliance by the Company with all of the
provisions of this Agreement and the consummation of the transactions
contemplated herein will not result in (i) a breach or violation of any of the
terms and provisions of, or constitute a default under, any obligation,
agreement, covenant or condition contained in any indenture, mortgage, deed of
trust, loan or credit agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which any of them is bound
or to which any of the property of the Company or any of its subsidiaries is
subject, (ii) a violation of the Company's charter or by-laws, or any statute or
any order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of its
properties or (iii) the creation of any Encumbrance upon any assets of the
Company or of any of its subsidiaries or the triggering of any preemptive or
anti-dilution rights or rights of first refusal or first offer, or any similar
rights (whether pursuant to a "poison pill" provision or otherwise), on the part
of holders of the Company's securities or any other person. Neither the Company
nor any of the subsidiaries or affiliates, nor any person acting on its or their
behalf, has issued or sold any shares of Common Stock or securities or
instruments convertible into, exchangeable for and/or otherwise entitling the
holder thereof to acquire shares of Common Stock which would be integrated with
the offer and sale of the Placement Shares hereunder, including, without
limitation, for purposes of any applicable shareholder approval provisions,
including, without limitation, under the rules and regulations of any exchange
or automated quotation system on which any of the securities of the Company are
listed or designated.
(o) Except as set forth in the Prospectus, the Company and its
subsidiaries have not violated and are in compliance with all applicable
laws, statutes, ordinances, regulations, rules and orders of any foreign,
federal, state or local government and any other governmental department or
agency, and any judgment, decision, decree or order of any court or
governmental agency, department or authority, except for such violations or
noncompliance which, individually or in the aggregate, would not be
reasonably likely to cause a Material Adverse Effect.
(p) The Company and its subsidiaries possess such licenses, permits,
consents, orders, certificates or authorizations issued by the appropriate
federal, state, foreign or local regulatory agencies or bodies necessary to
conduct their business as described in the Prospectus except for licenses,
permits, consents, orders, certificates, authorizations, approvals, franchises
or rights, the absence of which, individually or in the aggregate, would not be
reasonably likely to cause a Material Adverse Effect; the Company and its
subsidiaries have not received any notice of proceedings or investigations
relating to the revocation or modification of any such licenses,
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permits, consents, orders, certificates, authorizations, approvals, franchises
or rights which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would not be reasonably likely to cause a Material
Adverse Effect. No consent, approval, authorization or order of, or filing with,
any court or governmental agency or body is required for the issue and sale of
the Shares and the consummation by the Company of the transactions contemplated
by this Agreement, except the filing with the Commission of the Registration
Statement (including the Prospectus) and amendments and supplements to the
Registration Statement and Prospectus related to the issue and sale of the
Shares and such consents, approvals, authorizations, registrations or
qualifications as have already been obtained or made or as may be required under
state securities or Blue Sky laws.
(q) On the date hereof, and after the date hereof other than as set
forth in the Prospectus, to the best of the Company's knowledge, the Company and
its Significant Subsidiaries carry, or are covered by, insurance in such amounts
and covering such risks as is prudent, reasonable and customary for companies
engaged in similar businesses in similar industries.
(r) On the date hereof, and after the date hereof other than as set
forth in the Prospectus: (i) the Company and each of its subsidiaries have
obtained all material environmental permits, licenses and other authorizations
required by federal, state, foreign and local law in order to conduct their
businesses as described in the Prospectus; and (ii) the Company and each of
its subsidiaries are conducting their businesses in substantial compliance
with such permits, licenses and authorizations and with applicable
environmental laws, except where the failure to be in compliance would not be
reasonably likely to cause a Material Adverse Effect.
(s) Deloitte & Touche LLP, which has audited the financial statements
of the Company and its subsidiaries included in the Prospectus, is an
independent public accountant as required by the Act and the Rules and
Regulations.
(t) To the best of the Company's knowledge, the Company and each
Significant Subsidiary owns or possesses sufficient legal rights to use all
patents, trademarks, service marks, tradenames, copyrights, trade secrets and
licenses necessary for its business as now conducted (collectively, the
"COMPANY INTELLECTUAL PROPERTY RIGHTS"). Except as set forth in the Prospectus,
neither the Company nor any Significant Subsidiary has received any notice of
infringement of or conflict with (and the Company knows of no such
infringement of or conflict with) asserted rights of others with respect to
any Company Intellectual Property Rights which would be reasonably likely to
cause a Material Adverse Effect.
(u) On each Settlement Date and each Filing Date (as defined in
paragraph 7(l) below), the Company shall be deemed to have confirmed (i) the
accuracy and completeness, as of such date, of each representation and warranty
made by it in this Agreement, as if each such representation and warranty were
made on and as of such date, and (ii) that the Company has complied with all of
the agreements to be performed by it hereunder at or prior to such date.
(v) The Company is not a party to any agreement with an agent or
underwriter for any other "at-the-market" or continuous equity transaction.
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(w) The Company acknowledges and agrees that CF&Co has informed the
Company that CF&Co may, to the extent permitted under the Act and the Exchange
Act, purchase and sell shares of Common Stock for its own account while this
Agreement is in effect provided that (i) no such purchase or sales shall take
place while a Placement Notice is in effect, (ii) in no circumstances shall
CF&Co have a short position in the Common Stock, and (iii) the Company shall not
be deemed to have authorized or consented to any such purchases or sales by
CF&Co.
7. COVENANTS OF THE COMPANY. The Company covenants and agrees with
CF&Co that:
(a) After the date of this Agreement, with regard to the filing of the
Registration Statement with the Commission, and until such Registration
Statement is declared effective, and during the period in which a prospectus
relating to the Shares is required to be delivered by CF&Co under the Act, the
Company will notify CF&Co promptly of the time when any subsequent amendment to
the Registration Statement has been filed with the Commission and has become
effective or any subsequent supplement to the Prospectus has been filed and of
any request by the Commission for any amendment or supplement to the
Registration Statement or Prospectus or for additional information; it will
prepare and file with the Commission, promptly upon CF&Co's request, any
amendments or supplements to the Registration Statement or Prospectus that, in
CF&Co's opinion and the Company's reasonable opinion, may be necessary or
advisable in connection with the distribution of the Shares by CF&Co (provided,
however that the failure of CF&Co to make such request shall not relieve the
Company of any obligation or liability hereunder, or affect CF&Co's right to
rely on the representations and warranties made by the Company in this
Agreement); the Company will not file any amendment or supplement to the
Registration Statement or Prospectus unless a copy thereof has been submitted to
CF&Co a reasonable period of time before the filing and the Company has used its
reasonable best efforts to address any objections raised by CF&Co (provided,
however that the failure of CF&Co to make such objection shall not relieve the
Company of any obligation or liability hereunder, or affect CF&Co's right to
rely on the representations and warranties made by the Company in this
Agreement); and it will promptly furnish to CF&Co or notify CF&Co of electronic
availability of a copy of any document that upon filing is deemed to be
incorporated by reference in the Registration Statement or Prospectus; and the
Company will cause each amendment or supplement to the Prospectus to be filed
with the Commission as required pursuant to the applicable paragraph of Rule
424(b) of the Rules and Regulations or, in the case of any document to be
incorporated therein by reference, to be filed with the Commission as required
pursuant to the Exchange Act, within the time period prescribed. The
determination to file or not file any amendment or supplement with the
Commission under this Section 7(a), based on the Company's reasonable opinion or
reasonable objection, shall be made exclusively by the Company.
(b) The Company will advise CF&Co, promptly after it receives notice or
obtains knowledge thereof, of the issuance or threatened issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement, of the suspension of the qualification of the Shares for offering or
sale in any jurisdiction, or of the initiation or threatening of any proceeding
for any such purpose; and it will promptly use its commercially reasonable
efforts to
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prevent the issuance of any stop order or to obtain its withdrawal if such a
stop order should be issued.
(c) Within the time during which a prospectus relating to the Shares is
required to be delivered by CF&Co under the Act, the Company will comply with
all requirements imposed upon it by the Act and by the Rules and Regulations, as
from time to time in force, and will file on or before their respective due
dates all reports and any definitive proxy or information statements required to
be filed by the Company with the Commission pursuant to Sections 13(a), 13(c),
14, 15(d) or any other provision of or under the Exchange Act. If during such
period any event occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances then existing, not misleading, or if during such period it is
necessary to amend or supplement the Registration Statement or Prospectus to
comply with the Act, the Company will promptly notify CF&Co to suspend the
offering of Shares during such period and the Company will promptly amend or
supplement the Registration Statement or Prospectus (at the expense of the
Company) so as to correct such statement or omission or effect such compliance.
(d) The Company will use its best efforts to cause the Shares to be
listed on the NYSE and to qualify the Shares for sale under the securities laws
of such jurisdictions as CF&Co designates and to continue such qualifications in
effect so long as required for the distribution of the Shares; provided that the
Company shall not be required in connection therewith to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction.
(e) The Company will furnish to CF&Co and its counsel (at the expense
of the Company) copies of the Registration Statement, the Prospectus (including
all documents incorporated by reference therein) and all amendments and
supplements to the Registration Statement or Prospectus that are filed with the
Commission during the period in which a prospectus relating to the Shares is
required to be delivered under the Act (including all documents filed with the
Commission during such period that are deemed to be incorporated by reference
therein), in each case as soon as reasonably practicable and in such quantities
as CF&Co may from time to time reasonably request and, at CF&Co's request, will
also furnish copies of the Prospectus to each exchange or market on which sales
of Shares may be made.
(f) The Company will furnish to CF&Co for a period of one year after
the termination of this Agreement such information as reasonably requested by
CF&Co regarding the Company or the Significant Subsidiaries.
(g) The Company will make generally available to its security holders
as soon as practicable, but in any event not later than 15 months after the end
of the Company's current fiscal quarter, an earnings statement covering a
12-month period that satisfies the provisions of Section 11 (a) of the Act and
Rule 158 of the Rules and Regulations.
(h) The Company, whether or not the transactions contemplated hereunder
are consummated or this Agreement is terminated in accordance with Section 11
herein, will pay all expenses incident to the performance of its obligations
hereunder, including, but not limited to, expenses relating to (i) the
preparation, printing and filing of the Registration Statement and each
- 10 -
amendment and supplement thereto, of each Prospectus and of each amendment and
supplement thereto, (ii) the preparation, issuance and delivery of the Shares,
(iii) the fees and disbursements of the Company's counsel and accountants and
the reasonable fees and expenses of CF&Co's counsel in connection with
negotiating this agreement and performing its obligations hereunder, provided
however that if the Company issues at least $50,000,000 of common stock
hereunder prior to September 30, 2003, then CF&Co shall not be entitled to such
reimbursement, (iv) the qualification of the Shares under securities laws in
accordance with the provisions of Section 7(d) of this Agreement, including
filing fees and any reasonable fees or disbursements of counsel for CF&Co in
connection therewith, (v) the printing and delivery to CF&Co of copies of the
Prospectus and any amendments or supplements thereto, and of this Agreement,
(vi) the fees and expenses incurred in connection with the listing or
qualification of the Shares for trading on the New York Stock Exchange, or (vii)
filing fees and expenses, if any, of the Commission and the National Association
of Securities Dealers, Inc. Corporate Finance Department.
(i) The Company will use the Net Proceeds as described in the
Prospectus and, in any case, shall not use such proceeds to make a loan to any
employee, officer, director or shareholder of the Company (other than loans made
to new employees as a condition of employment), regardless of whether such loan
was authorized by the Company's Board of Directors prior to the date hereof.
(j) Without the written consent of CF&Co, the Company will not,
directly or indirectly, offer to sell, contract to sell, grant any option to
sell or otherwise dispose of any shares of Common Stock (other than the Shares
offered pursuant to the provisions of this Agreement) or securities convertible
into or exchangeable for Common Stock, warrants or any rights to purchase or
acquire, Common Stock during the period beginning on the fifth (5th) Trading Day
immediately prior to the date on which any Acceptance of a Placement Notice is
delivered to CF&Co hereunder and ending on the fifth (5th) Trading Day
immediately following the final Settlement Date with respect to Shares sold
pursuant to such Placement Notice; the Company will not directly or indirectly
in any other "at-the-market" or continuous equity transaction offer to sell,
sell, contract to sell, grant any option to sell or otherwise dispose of any
shares of Common Stock (other than the Shares offered pursuant to the provisions
of this Agreement) or securities convertible into or exchangeable for Common
Stock, warrants or any rights to purchase or acquire, Common Stock prior to the
thirtieth (30th) day immediately following the final Settlement Date with
respect to Shares sold pursuant to such Placement Notice; provided, however,
that such restriction will not be required in connection with the Company's
issuance or sale of (i) Common Stock, options to purchase shares of Common Stock
or Common Stock issuable upon the exercise of options, pursuant to any employee
or director stock option or benefits plan, stock ownership plan or dividend
reinvestment plan, including without limitation, the Direct Purchase and
Investment Plan (but not shares subject to a waiver to exceed plan limits in its
stock purchase plan) of the Company now in effect, and (ii) Common Stock
issuable upon conversion of securities or the exercise of warrants, options or
other rights in effect or outstanding, and disclosed in writing to CF&Co.
(k) The Company will, at any time during the term of this Agreement, as
supplemented from time to time, advise CF&Co immediately after it shall have
received notice
- 11 -
or obtain knowledge thereof, of any information or fact that would alter or
affect any opinion, certificate, letter or other document provided to CF&Co
pursuant to this Agreement.
(l) The Company will cooperate with any due diligence review conducted
by CF&Co or its agents, including, without limitation, providing information and
making available documents and senior corporate officers, as CF&Co may
reasonably request; provided, however, that the Company shall be required to
make available documents and senior corporate officers only (i) at the Company's
principal offices and (ii) during the Company's ordinary business hours,
provided that any confidentiality or non-disclosure agreement between the
Company and CF&Co remains in effect and breach of the terms thereof by CF&Co has
not occurred.
(m) The Company agrees that on such dates as the Rules and Regulations
shall require, the Company will (i) file a prospectus supplement with the
Commission under the applicable paragraph of Rule 424(b) under the Act (each and
every filing under Rule 424(b) a "FILING DATE"), which prospectus supplement
will set forth, within the relevant period, the amount of Shares sold through
CF&Co, the Net Proceeds to the Company and the compensation payable by the
Company to CF&Co and (ii) deliver such number of copies of each such prospectus
supplement to each exchange or market on which such sales were effected as may
be required by the rules or regulations of such exchange or market.
(n) On the date that the Registration Statement is declared effective
and each time thereafter that a Comfort Letter is required to be provided by the
Company's independent accountants pursuant to Section 7(p) herein, the Company
shall furnish or cause to be furnished to CF&Co forthwith a certificate dated
the date of filing with the Commission of such supplement, or other document, or
the date of the effectiveness of the Registration Statement or such amendment,
as the case may be, in the form attached hereto as Exhibit 7(n) to the effect
that the representations and warranties made by the Company in this Agreement
are true and correct on such date as though made at and as of such date (except
that such statements shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to such time) and that the Company
has complied with all of the agreements to be performed by it at or prior to
such date.
(o) On the date that the Registration Statement is declared effective
and each time thereafter that a Comfort Letter is required to be provided by the
Company's independent accountants pursuant to Section 7(p) herein, the Company
shall furnish or cause to be furnished forthwith to CF&Co a written opinion of
the General Counsel of the Company, or, if the General Counsel is not available,
from Xxxxx Xxxxxxxx, Assistant General Counsel and Secretary ("COMPANY COUNSEL")
no later than the day before the trade date of the first Placement under this
Agreement for the first such opinion (the "Initial Opinion") in the form annexed
hereto as Exhibit 8(e)(1) and, for subsequent opinions, no later than two (2)
Business Days after the date of effectiveness of the amendment or the date of
filing of the supplement or other document with the Commission, as the case may
be, in the form annexed hereto as Exhibit 8(e)(2) and dated the date of
effectiveness or filing of such document, as the case may be.
(p) On the date that the Registration Statement is declared effective
and each time that the Registration Statement is amended or the Prospectus
supplemented to include additional amended financial information or there is
filed with the Commission any document incorporated
- 12 -
by reference into the Prospectus which contains additional amended financial
information, the Company shall cause its independent accountants reasonably
satisfactory to CF&Co, forthwith to furnish CF&Co letters (the "COMFORT
LETTERS"), dated the date of effectiveness of the Registration Statement or such
amendment, or the date of filing of such supplement or other document with the
Commission, as the case may be, in form and substance satisfactory to CF&Co, (i)
confirming that they are independent public accountants within the meaning of
the Act and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of such date, the conclusions and findings of such
firm with respect to the financial information and other matters ordinarily
covered by accountants' "comfort letters" to underwriters in connection with
registered public offerings (the first such letter, the "INITIAL COMFORT
LETTER") and (iii) updating the Initial Comfort Letter with any information
which would have been included in the Initial Comfort Letter had it been given
on such date and modified as necessary to relate to the Registration Statement
and the Prospectus, as amended and supplemented to the date of such letter.
(q) The Company will not, directly or indirectly, (i) take any action
designed to cause or result in, or that constitutes or might reasonably be
expected to constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Placement Shares
or (ii) sell, bid for, or purchase the Shares, or pay anyone any compensation
for soliciting purchases of the Shares other than CF&Co.
8. CONDITIONS TO CF&CO'S OBLIGATIONS. The obligations of CF&Co
hereunder with respect to a Placement will be subject to the continuing accuracy
and completeness of the representations and warranties made by the Company
herein, to the due performance by the Company of its obligations hereunder, to
the completion by CF&Co of a due diligence review satisfactory to CF&Co in its
reasonable judgment, and to the continuing satisfaction (or waiver by CF&Co in
its sole discretion) of the following additional conditions:
(a) The Registration Statement shall have become effective and shall be
available for the resale of (i) all Placement Shares issued pursuant to all
prior Placements and not yet sold by CF&Co and (ii) all Placement Shares
contemplated to be issued by the Placement Notice relating to such Placement.
(b) None of the following events shall have occurred and be continuing:
(i) receipt by the Company of any request for additional information from the
Commission or any other federal or state governmental authority during the
period of effectiveness of the Registration Statement, the response to which
would require any amendments or supplements to the Registration Statement or the
Prospectus; (ii) the issuance by the Commission or any other federal or state
governmental authority of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose;
(iii) receipt by the Company of any notification with respect to the suspension
of the qualification or exemption from qualification of any of the Shares for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose; (iv) the occurrence of any event that makes any statement made in
the Registration Statement or the Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect or
that requires the making of any changes in the Registration Statement, related
Prospectus or documents so that, in the case of the Registration Statement, it
will not contain any untrue statement of a material fact or omit to
- 13 -
state any material fact required to be stated therein or necessary to make the
statements therein not misleading, and that in the case of the Prospectus, it
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 the light of the circumstances under which they were made, not
misleading; and (v) the Company's reasonable determination that a post-effective
amendment to the Registration Statement would be appropriate.
(c) CF&Co shall not have advised the Company that the Registration
Statement or Prospectus, or any amendment or supplement thereto, contains an
untrue statement of fact that in CF&Co's reasonable opinion is material, or
omits to state a fact that in CF&Co's opinion is material and is required to be
stated therein or is necessary to make the statements therein not misleading.
(d) Except as contemplated in the Prospectus, or disclosed in the
Company's reports filed with the Commission, there shall not have been any
material change, on a consolidated basis, in the authorized capital stock of the
Company and the Significant Subsidiaries, or any Material Adverse Effect, or any
development that may reasonably be expected to cause a Material Adverse Effect,
or a downgrading in or withdrawal of the rating assigned to any of the Company's
securities by any rating organization or a public announcement by any rating
organization that it has under surveillance or review its rating of any of the
Company's securities, the effect of which, in the case of any such action by a
rating organization described above, in the sole judgment of CF&Co (without
relieving the Company of any obligation or liability it may otherwise have), is
so material as to make it impracticable or inadvisable to proceed with the
offering of the Placement Shares on the terms and in the manner contemplated in
the Prospectus.
(e) CF&Co shall have received the opinions of Company Counsel required
to be delivered pursuant, to Section 7(o) on or before the date on which
delivery of such opinion is required pursuant to Section 7(o).
(f) CF&Co shall have received the Comfort Letter required to be
delivered pursuant to Section 7(p) on or before the date on which delivery of
such Comfort Letter is required pursuant to Section 7(p).
(g) CF&Co shall have received the certificates required to be delivered
pursuant to Section 7(m) on or before the date on which satisfaction of this
condition is determined.
(h) The Placement Shares shall have been duly listed, subject to notice
of issuance, on the NYSE, and trading in the Common Stock shall not have been
suspended on such market.
(i) There shall not have occurred any event that would permit CF&Co to
terminate this Agreement pursuant to Section 11(a).
9. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless CF&Co, the
directors, officers, partners, employees and agents of CF&Co and each person, if
any, who (i) controls CF&Co within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, or (ii) is
- 14 -
controlled by or is under common control with CF&Co (a "CF&CO AFFILIATE") from
and against any and all losses, claims, liabilities, expenses and damages
(including, but not limited to, any and all investigative, legal and other
expenses reasonably incurred in connection with, and any and all amounts paid in
settlement of, any action, suit or proceeding between any indemnified party and
any third party, or otherwise, or any claim asserted), as and when incurred, to
which CF&Co, or any such person, may become subject under the Act, the Exchange
Act or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, liabilities, expenses or damages
arise out of or are based, directly or indirectly, on (i) any untrue statement
or alleged untrue statement of a material fact contained in any preliminary
prospectus, the Registration Statement or the Prospectus or any amendment or
supplement to the Registration Statement or the Prospectus, or in any
application or other document executed by or on behalf of the Company or based
on written information furnished by or on behalf of the Company filed in any
jurisdiction in order to qualify the Shares under the securities laws thereof or
filed with the Commission, (ii) the omission or alleged omission to state in
such document a material fact required to be stated in it or necessary to make
the statements in it not misleading or (iii) any breach by any of the
indemnifying parties of any of their respective representations, warranties and
agreements contained in this Agreement; provided that this indemnity agreement
shall not apply to the extent that such loss, claim, liability, expense or
damage arises from the sale of the Shares pursuant to this Agreement and is
caused directly by an untrue statement or omission made in reliance on and in
conformity with information relating to CF&Co and furnished in writing to the
Company by CF&Co expressly stating that such information is intended for
inclusion in any document described in clause (a)(i) above. This indemnity
agreement will be in addition to any liability that the Company might otherwise
have.
(b) CF&Co agrees to indemnify and hold harmless the Company and its
directors and each officer and director of the Company who signed the
Registration Statement, and each person, if any, who (i) controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act or
(ii) is controlled by or is under common control with the Company (a "COMPANY
AFFILIATE") against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendments thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information and relating to CF&Co furnished to the Company by CF&Co expressly
stating that such information is intended for use in the Registration Statement
(or any amendment thereto) or such preliminary prospectus or the Prospectus (or
any amendment or supplement thereto), or any breach by CF&Co of any agreement
contained in this Agreement or any Placement Notice issued to the Company and
which has been accepted by the Company pursuant to this Agreement.
(c) Any party that proposes to assert the right to be indemnified under
this Section 9 will, promptly after receipt of notice of commencement of any
action against such party in respect of which a claim is to be made against an
indemnifying party or parties under this Section 9, notify each such
indemnifying party of the commencement of such action, enclosing a copy of all
papers served, but the omission so to notify such indemnifying party will not
relieve the indemnifying party from (i) any liability that it might have to any
indemnified party
- 15 -
otherwise than under this Section 9 and (ii) any liability that it may have to
any indemnified party under the foregoing provision of this Section 9 unless,
and only to the extent that, such omission results in the forfeiture of
substantive rights or defenses by the indemnifying party. If any such action is
brought against any indemnified party and it notifies the indemnifying party of
its commencement, the indemnifying party will be entitled to participate in and,
to the extent that it elects by delivering written notice to the indemnified
party promptly after receiving notice of the commencement of the action from the
indemnified party, jointly with any other indemnifying party similarly notified,
to assume the defense of the action, with counsel reasonably satisfactory to the
indemnified party, and after notice from the indemnifying party to the
indemnified party of its election to assume the defense, the indemnifying party
will not be liable to the indemnified party for any legal or other expenses
except as provided below and except for the reasonable costs of investigation
subsequently incurred by the indemnified party in connection with the defense.
The indemnified party will have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel will be at the
expense of such indemnified party unless (1) the employment of counsel by the
indemnified party has been authorized in writing by the indemnifying party, (2)
the indemnified party has reasonably concluded (based on advice of counsel) that
there may be legal defenses available to it or other indemnified parties that
are different from or in addition to those available to the indemnifying party,
(3) a conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the reasonable fees, disbursements and other charges of more than one separate
firm admitted to practice in such jurisdiction at any one time for all such
indemnified party or parties. All such fees, disbursements and other charges
will be reimbursed by the indemnifying party promptly as they are incurred. An
indemnifying party will not be liable for any settlement of any action or claim
effected without its written consent. No indemnifying party shall, without the
prior written consent of each indemnified party, settle or compromise or consent
to the entry of any judgment in any pending or threatened claim, action or
proceeding relating to the matters contemplated by this Section 9 (whether or
not any indemnified party is a party thereto), unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising or that may arise out of such claim, action or
proceeding. Notwithstanding any other provision of this Section 9(c), if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel for which it is
entitled to reimbursement pursuant to this Section 9(c), such indemnifying party
agrees that it shall be liable for any settlement effected without its written
consent if (i) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into, and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement; provided that an indemnifying
party shall not be liable for any such settlement effected without its consent
- 16 -
if such indemnifying party, at least five days prior to the date of such
settlement, (1) reimburses such indemnified party in accordance with such
request for the amount of such fees and expenses of counsel as the indemnifying
party believes in good faith to be reasonable and (2) provides written notice to
the indemnified party that the indemnifying party disputes in good faith the
reasonableness of the unpaid balance of such fees and expenses.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 9 is applicable in accordance with its terms but for
any reason is held to be unavailable from the Company or CF&Co, the Company and
CF&Co will contribute to the total losses, claims, liabilities, expenses and
damages (including any investigative, legal and other expenses reasonably
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted, but after deducting any contribution
received by the Company from persons other than CF&Co, such as persons who
control the Company within the meaning of the Act, officers of the Company who
signed the Registration Statement and directors of the Company, who also may be
liable for contribution) to which the Company and CF&Co may be subject in such
proportion as shall be appropriate to reflect the relative benefits received by
the Company on the one hand and CF&Co on the other. The relative benefits
received by the Company on the one hand and CF&Co on the other hand shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total
compensation (before deducting expenses) received by CF&Co from the sale of
Shares on behalf of the Company. If, but only if, the allocation provided by the
foregoing sentence is not permitted by applicable law, the allocation of
contribution shall be made in such proportion as is appropriate to reflect not
only the relative benefits referred to in the foregoing sentence but also the
relative fault of the Company, on the one hand, and CF&Co, on the other, with
respect to the statements or omission which resulted in such loss, claim,
liability, expense or damage, or action in respect thereof, as well as any other
relevant equitable considerations with respect to such offering. Such relative
fault shall be determined by reference to, among other things, 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 CF&Co, 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 CF&Co agree that it would not be just and equitable if
contributions pursuant to this Section 9(d) were to be determined by pro rata
allocation 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, liability, expense, or
damage, or action in respect thereof, referred to above in this Section 9(d)
shall be deemed to include, for the purpose of this Section 9(d), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim to the extent consistent
with Section 9(c) hereof. Notwithstanding the foregoing provisions of this
Section 9(d), CF&Co shall not be required to contribute any amount in excess of
the commissions received by it under this Agreement and no person found guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 9(d), any person who
controls a party to this Agreement within the meaning of the Act, and any
officers, directors, partners, employees or agents of CF&Co, will have the same
rights to contribution as CF&Co, and each
- 17 -
officer and director of the Company will have the same rights to contribution as
the Company, subject in each case to the provisions hereof. Any party entitled
to contribution, promptly after receipt of notice of commencement of any action
against such party in respect of which a claim for contribution may be made
under this Section 9(d), will notify any such party or parties from whom
contribution may be sought, but the omission to so notify will not relieve that
party or parties from whom contribution may be sought from any other obligation
it or they may have under this Section 9(d), except to the extent that the
failure to so notify such other party materially prejudiced the defenses of the
party from whom contribution is sought. Except for a settlement entered into
pursuant to the last sentence of Section 9(c) hereof, no party will be liable
for contribution with respect to any action or claim settled without its written
consent if such consent is required pursuant to Section 9(c) hereof.
10. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations and warranties of the Company herein or in certificates
delivered pursuant hereto shall remain operative and in full force and effect
regardless of (i) any investigation made by or on behalf of CF&Co, any
controlling persons, or the Company (or any of their respective officers,
directors or controlling persons), (ii) delivery and acceptance of the Shares
and payment therefor or (iii) any termination of this Agreement.
11. TERMINATION.
(a) CF&Co shall have the right by giving notice as hereinafter
specified at any time to terminate this Agreement if (i) any Material Adverse
Effect, or any development that has actually occurred and that is reasonably
expected to cause a Material Adverse Effect has occurred which, in the
reasonable judgment of CF&Co, may materially impair the investment quality of
the Shares, (ii) the Company shall have failed, refused or been unable, at or
prior to any Settlement Date, to perform any agreement on its part to be
performed hereunder, (iii) any other condition of CF&Co's obligations hereunder
is not fulfilled, (iv) any suspension or limitation of trading in the Shares or
in securities generally on the NYSE shall have occurred, (v) any banking
moratorium shall have been declared by federal or New York authorities or (vi)
an outbreak or material escalation of major hostilities in which the United
States is involved, a declaration of war by Congress, any other substantial
national or international calamity or any other event or occurrence of a similar
character shall have occurred since the execution of this Agreement that, in the
sole judgment of CF&Co, makes it impractical or inadvisable to proceed with the
completion of the sale of and payment for the Shares to be sold by CF&Co on
behalf of the Company. Any such termination shall be without liability of any
party to any other party except that the provisions of Section 7(f), Section
7(h), Section 9, Section 10, Section 12, Section 16 and Section 17 hereof shall
remain in full force and effect notwithstanding such termination. If CF&Co
elects to terminate this Agreement as provided in this Section, CF&Co shall
provide the required notice as specified herein.
(b) The Company shall have the right, by giving twenty (20) days'
notice as hereinafter specified, to terminate this Agreement in its sole
discretion at any time. Any such termination shall be without liability of any
party to any other party except that the provisions of Section 7(f), Section
7(h), Section 7(j), Section 9, Section 10, Section 12, Section 16 and Section 17
hereof shall remain in full force and effect notwithstanding such termination.
- 18 -
(c) CF&Co shall have the right, by giving twenty (20) days' notice as
hereinafter specified, to terminate this Agreement in its sole discretion at any
time. Any such termination shall be without liability of any party to any other
party except that the provisions of Section 7(f), Section 7(h), Section 9,
Section 10, Section 12, Section 16 and Section 17 hereof shall remain in full
force and effect notwithstanding such termination.
(d) Unless earlier terminated pursuant to any other provision of this
Section 11 or Section 13, this Agreement shall be terminated automatically upon
the issuance and sale of all of the Placement Shares through CF&Co on the terms
and subject to the conditions set forth herein. At such time, the parties hereto
shall sign a termination notice annexed hereto in the form of Exhibit 11(d).
(e) This Agreement shall remain in full force and effect unless
terminated pursuant to Sections 11(a), (b), (c), or (d) above or otherwise by
mutual agreement of the parties; provided that any such termination by mutual
agreement shall in all cases be deemed to provide that Section 7(f), Section
7(h), Section 7(j), Section 9, Section 10, Section 12, Section 16 and Section 17
shall remain in full force and effect.
(f) Any termination of this Agreement shall be effective on the date
specified in such notice of termination; provided that such termination (other
than a termination pursuant to Section 11(d) above) shall not be effective until
the close of business on the date of receipt of such notice by CF&Co or the
Company, as the case may be. If such termination shall occur prior to the
Settlement Date for any sale of Placement Shares, such Placement Shares shall
settle in accordance with the provisions of this Agreement.
12. NOTICES. All notices or other communications required or permitted
to be given by any party to any other party pursuant to the terms of this
Agreement shall be in writing and if sent to CF&Co, shall be delivered to CF&Co
at Cantor Xxxxxxxxxx & Co., 000 Xxxx 00 Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, fax
no. (000) 000-0000, Attention: Xxxx X. Xxxxxx, with a copy to General Counsel at
the same address, with a copy to Xxxxx Xxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, fax no. (000) 000-0000, Attention: Xxxxx X. Xxxxx; or
if sent to the Company, shall be delivered to Peoples Energy Corporation, 000
Xxxx Xxxxxxxx Xxxxx, Xxxxxxx, XX 00000-0000 fax no. (000) 000-0000, attn: Xxxx
Xxxxxxx, Vice President-Finance, with a copy to the General Counsel at the same
address. Each party to this Agreement may change such address for notices by
sending to the parties to this Agreement written notice of a new address for
such purpose. Each such notice or other communication shall be deemed given (i)
when delivered personally or by verifiable facsimile transmission (with an
original to follow) on or before 4:30 p.m., eastern time, on a Business Day or,
if such day is not a Business Day, on the next succeeding Business Day, (ii) on
the next Business Day after timely delivery to a nationally recognized overnight
courier and (iii) on the Business Day actually received if deposited in the U.S.
mail (certified or registered mail, return receipt requested, postage prepaid).
For purposes of this Agreement, "BUSINESS DAY" shall mean any day on which the
New York Stock Exchange and commercial banks in the city of New York are open
for business.
13. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the Company and CF&Co and their respective successors and
the affiliates, controlling persons, officers and directors referred to in
Section 9 hereof. References to any of
- 19 -
the parties contained in this Agreement shall be deemed to include the
successors and permitted assigns of such party. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and permitted assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement. Neither party may assign its
rights or obligations under this Agreement without the prior written consent of
the other party, PROVIDED, HOWEVER, that CF&Co may assign its rights and
obligations hereunder to an affiliate of CF&Co without obtaining the Company's
consent, and PROVIDED, FURTHER, that (1) CF&Co gives prompt written notice of
such assignment to the Company, (2) any such assignment shall not release CF&Co
of its obligations under this Agreement and (3) the Company may terminate this
Agreement at any time following any such assignment by CF&Co. In the event of
such a termination the provisions of Section 7(f), Section 7(h), Section 9,
Section 10, Section 12, Section 16 and Section 17 hereof shall remain in full
force and effect notwithstanding such termination.
14. ADJUSTMENTS FOR STOCK SPLITS. The parties acknowledge and agree
that all share related numbers contained in this Agreement (including, without
limitation, the Maximum Amount) shall be adjusted to take into account any stock
split, stock dividend or similar event effected with respect to the Shares.
15. ENTIRE AGREEMENT; AMENDMENT; SEVERABILITY. This Agreement
constitutes the entire agreement and supersedes all other prior and
contemporaneous agreements and undertakings, both written and oral, among the
parties hereto with regard to the subject matter hereof. Neither this Agreement
nor any term hereof may be amended except pursuant to a written instrument
executed by the Company and CF&Co. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
16. APPLICABLE LAW; CONSENT TO JURISDICTION. This Agreement shall be
governed by, and construed in accordance with, the internal laws of the State of
New York without regard to the principles of conflicts of laws. Each party
hereby irrevocably submits to the non-exclusive jurisdiction of the state and
federal courts sitting in the City of New York, borough of Manhattan, for the
adjudication of any dispute hereunder or in connection with any transaction
contemplated hereby, and hereby irrevocably waives, and agrees not to assert in
any suit, action or proceeding, any claim that it is not personally subject to
the jurisdiction of any such court, that such suit, action or proceeding is
brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof (certified or registered mail, return
receipt requested) to such party at the address in effect for notices to it
under this Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any manner permitted
by law.
17. WAIVER OF JURY TRIAL. Each of the Company and CF&Co hereby
irrevocably waives any right it may have to a trial by jury in respect of any
claim based upon or arising out of this agreement or any transaction
contemplated hereby.
- 20 -
18. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Delivery of an executed
Agreement by one party to the other may be made by facsimile transmission.
- 21 -
If the foregoing correctly sets forth the understanding between the
Company and CF&Co, please so indicate in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement between the
Company and CF&Co.
Very truly yours,
PEOPLES ENERGY CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx
Chief Financial Officer
ACCEPTED as of the date
first-above written:
CANTOR XXXXXXXXXX & CO.
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Xxxxxxx Xxxxxx
Executive Managing Director &
General Counsel
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Xxxx X. Xxxxxx
Managing Director
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SCHEDULE 1
CANTOR XXXXXXXXXX & CO.
000 XXXX 00 XXXXXX
XXX XXXX, XXX XXXX 00000
Chief Financial Officer
Peoples Energy Corporation
000 Xxxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
VIA FACSIMILE
FORM OF PLACEMENT NOTICE
Dear Xxxxxx:
This confirms our agreement to sell up to 1,500,000 shares of Peoples Energy
Corporation, an Illinois corporation (the "Company") common stock, without par
value pursuant to the CONTROLLED EQUITY OFFERING(SM) Sales Agreement executed
between the Company and Cantor Xxxxxxxxxx & Co.("CF&Co.") on , 2002 (the
"Agreement"). Terms used herein but not defined herein shall have the meanings
set forth in the Agreement.
Number of Shares to be Sold:
-------------------------------------------------
Minimum Price at which Share
may be Sold:
-------------------------------------------------
Date(s) on which Shares may
be Sold:
-------------------------------------------------
Underwriting 2% of gross proceeds of sales actually effected
Discount/Commission: in accordance with the terms of Placement Notice.
-------------------------------------------------
Manner and capacity in which
shares are to be Sold
-------------------------------------------------
By executing this draw down notice, the parties agree to comply with the
aforementioned agreements, and to execute the transaction as described herein:
PLACEMENTS. The terms set forth in this Placement Notice will not be binding on
the Company or CF&Co unless and until the Company delivers written notice of its
acceptance of all of the terms
of this Placement Notice (an "ACCEPTANCE") prior to 4:30 p.m. (New York time) on
the Business Day following the Business Day on which this Placement Notice is
delivered to the Company. In the event of a conflict between the terms of the
Sales Agreement and the terms of this Placement Notice, the terms of this
Placement Notice will control.
SALE OF PLACEMENT SHARES BY CF&CO. CF&Co shall use its commercially reasonable
efforts consistent with its normal trading and sales practice to sell such
Placement Shares up to the amount specified, and otherwise in accordance with
the terms of this Placement Notice. CF&Co will provide written confirmation to
the Company no later than the opening of the Trading Day next following the
Trading Day on which it has made sales of Placement Shares hereunder setting
forth the number of Placement Shares sold on such day, the compensation payable
by the Company to CF&Co with respect to such sales, and the Net Proceeds (as
defined below) payable to the Company. The Company acknowledges and agrees that
(i) there can be no assurance that CF&Co will be successful in selling Placement
Shares, and (ii) CF&Co will incur no liability or obligation to the Company or
any other person or entity if it does not sell Placement Shares for any reason
other than a failure of CF&Co to use its commercially reasonable efforts
consistent with its normal trading and sales practice to sell such Placement
Shares.
DELIVERY OF SHARES. On or before each Settlement Date, the Company will, or will
cause its transfer agent to, electronically transfer the Placement Shares being
sold by crediting CF&Co's or its designee's account at The Depository Trust
Company through its Deposit Withdrawal Agent Commission System or by such other
means of delivery as may be mutually agreed upon by the parties hereto and, upon
receipt of such Placement Shares, which in all cases shall be freely tradeable,
transferable, registered shares in good deliverable form, CF&Co will deliver the
related Net Proceeds in same day funds delivered to an account designated by the
Company prior to the Settlement Date. If the Company defaults in its obligation
to deliver Shares on a Settlement Date, the Company agrees that in addition to
and in no way limiting the rights and obligations set forth in Section 9(a) of
the Agreement, it will (i) hold CF&Co harmless against any loss, claim, damage,
or expense (including reasonable legal fees and expenses), as incurred, arising
out of or in connection with such default by the Company and (ii) pay to CF&Co
any commission, discount, or other compensation to which it would otherwise have
been entitled absent such default.
SUSPENSION OF SALES. The Company or CF&Co may, upon notice to the other party in
writing or by telephone (confirmed immediately by verifiable facsimile
transmission), suspend any sale of Placement Shares; provided, however, that
such suspension shall not affect or impair either party's obligations with
respect to any Placement Shares sold hereunder prior to the receipt of such
notice. The Company agrees that no such notice shall be effective against CF&Co
unless it is made to one of the individuals named on Schedule 2 of the
Agreement, as such Schedule may be amended from time to time. CF&Co agrees that
no such notice shall be effective against the Company unless it is made to one
of the individuals named on Schedule 2 of the Agreement, as such Schedule may be
amended from time to time.
SETTLEMENT OF PLACEMENT SHARES. Unless otherwise specified in the applicable
Placement Notice, settlement for sales of Placement Shares will occur on the
third (3rd) Business Day (or such earlier day as is industry practice for
regular-way trading) following the date on which such sales are made (each a
"SETTLEMENT DATE"). The amount of proceeds to be delivered to the Company on
- 2 -
a Settlement Date against the receipt of the Placement Shares sold ("NET
PROCEEDS") will be equal to the aggregate sales price at which such Placement
Shares were sold, after deduction for (i) CF&Co's commission, discount, or other
compensation for such sales payable by the Company pursuant to Section 2 of the
Agreement, (ii) any other amounts due and payable by the Company to CF&Co
pursuant to Section 7(h) of the Agreement, and (iii) any transaction fees
imposed by any governmental or self-regulatory organization in respect of such
sales.
Very truly yours,
CANTOR XXXXXXXXXX & CO.
By:
-------------------------
Xxxx X. Xxxxxx
Managing Director
- 3 -
By executing this Acceptance the undersigned certifies that (i) all of the
representations and warranties contained in the Agreement are true and correct
on the date hereof as if made on the date hereof, (ii) the officer to whom the
Board of Directors has delegated authority to approve the terms and conditions
of this Placement Notice has so approved, (iii) the Company is in full
compliance with its obligations under the Agreement and (iv) all of the
conditions precedent to the consummations of the sales contemplated by this
Placement Notice has been satisfied. The undersigned undertakes to promptly
CF&Co. in the event that the above certification shall cease to be true and
correct during any period in which sales may be made under this Placement
Notice.
ACCEPTED as of the date
first-above written:
PEOPLES ENERGY CORPORATION
By:
--------------------------------
Name:
Title:
- 4 -
SCHEDULE 2
CANTOR XXXXXXXXXX & CO.
Xxxx Xxxxxx
Xxxx X. Xxxxxx
Xxxxxxx Xxxxx
Xxxxxxx XxXxxxxx
PEOPLES ENERGY CORPORATION
Xxxxxxx X. Xxxxxxx
Xxxxx Xxxxx
Xxxxxx X. Xxxxx
EXHIBIT 7(n)
OFFICER CERTIFICATE
The undersigned, the duly qualified and elected _____ of Peoples Energy
Corporation ("Company"), an Illinois corporation, does hereby certify in such
capacity and on behalf of the Company, pursuant to Section 7(n) of the Sales
Agreement dated December __, 2002 (the "Sales Agreement") between the Company
and Cantor Xxxxxxxxxx & Co., that to the best of the knowledge of the
undersigned:
(i) The representations and warranties of the Company in Section 6 of
the Sales Agreement are true and correct on and as of the date hereof, with the
same force and effect as if expressly made on and as of the date hereof; and
(ii) The Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied pursuant to the Sales
Agreement at or prior to the date hereof.
PEOPLES ENERGY CORPORATION
By:____________________________
Name:
Title:
Date:
EXHIBIT 8(e)(1)
MATTERS TO BE COVERED BY INITIAL COMPANY COUNSEL OPINION
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Illinois with
corporate power and authority to own its properties and conduct its business as
described in the Registration Statement and Prospectus. Each of the Significant
Subsidiaries (as defined in Rule 1-02 of Regulation S-X) has been duly
incorporated or duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation or organization
with corporate power and authority to own its properties and conduct its
business as described in the Registration Statement and Prospectus.
(ii) The Company and each Significant Subsidiary is qualified to do
business in the states set forth for each on Schedule A hereto.
(iii) The Sales Agreement has been duly authorized, executed, and
delivered by the Company.
(iv) The execution and delivery of the Sales Agreement by the Company
on or prior to the date hereof, and the issuance and sales of the Placement
Shares by the Company pursuant to the Sales Agreement, if issued and sold on or
prior to the date hereof, will not result in the violation by the Company of its
Articles of Incorporation or Bylaws, the Articles of Incorporation or Bylaws of
any Subsidiary or any federal or Illinois statute, rule or regulation known to
us to be applicable to the Company (other than federal or state securities laws,
which are specifically addressed elsewhere herein) or in the breach of or a
default under [any of the Agreements listed on Schedule B attached hereto], and
to the best of our knowledge no consent, approval, authorization or order of, or
filing with, any federal or Illinois court or governmental agency or body is
required for the consummation of the issuance and sale of the Shares by the
Company pursuant to the Sales Agreement, except such as have been obtained under
the Securities Act and such as may be required under state securities laws.
(v) The Shares to be issued and sold by the Company pursuant to the
Placement Notice have been duly authorized, and, when issued and delivered to
and paid for by the purchasers thereof in accordance with the terms of the Sales
Agreement and the Placement Notice, will be validly issued, fully paid and
nonassessable and, to the best of our knowledge, free of preemptive rights.
(vi) The Registration Statement has become effective under the
Securities Act and, to the best of our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceeding
for that purpose has been instituted by the United States Securities and
Exchange Commission (the "Commission").
- 2 -
(vii) The Registration Statement, when it became effective, and the
Prospectus and any amendment or supplement thereto, on the date of filing
thereof with the Commission, complied as to form in all material respects with
the requirements for registration statements on Form S-3 under the Securities
Act and the rules and regulations of the Commission thereunder, and each of the
documents incorporated by reference in the Registration Statement or the
Prospectus, or any amendment or supplement thereto, on the date of filing
thereof with the Commission, complied as to form in all material respects with
the requirements of the Exchange Act and the rules and regulations of the
Commission thereunder; it being understood, however, that we express no opinion
with respect to the financial statements, schedules or other financial data
included or incorporated by reference in, or omitted from, the Registration
Statement or the Prospectus or any other document. In passing upon the
compliance as to form of the Registration Statement and the Prospectus and any
other document, we have assumed that the statements made and incorporated by
reference therein are correct and complete.
(viii) The statements set forth in the Prospectus under the captions
"Plan of Distribution" and "Description of Capital Stock" insofar as such
statements constitute a summary of legal matters and documents referred to
therein, are accurate in all material respects.
(ix) To the best of our knowledge and other than as set forth in the
Prospectus, there are no legal or governmental proceedings pending or threatened
to which the Company is a party required to be described in the Prospectus that
are not described as required.
(x) The Company is not an "investment company," as such term is defined
in the Investment Company Act of 1940, as amended.
In addition, we have participated in conferences with officers and
other representatives of the Company, representatives of the independent public
accountants for the Company, and your representatives, at which the contents of
the Registration Statement and the Prospectus and related matters were discussed
and, although we are not passing upon, and do not assume any responsibility for,
the accuracy, completeness or fairness of the statements contained or
incorporated by reference in the Registration Statement and the Prospectus and
have not made any independent check or verification thereof, during the course
of such participation, no facts came to our attention that caused us to believe
that the Registration Statement, at the time it became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or that the Prospectus, as of its date, contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; it being understood that we express no belief with respect
to the financial statements, schedules and other financial and statistical data
included or incorporated by reference in the Registration Statement or the
Prospectus.
*Note: "Registration Statement" and "Prospectus" will be defined to include
documents incorporated by reference therein ("Incorporated Documents").
- 3 -
EXHIBIT 8(e)(2)
MATTERS TO BE COVERED BY SUBSEQUENT COMPANY COUNSEL OPINIONS
(i) The Registration Statement has become effective under the Act and,
to the best of our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been instituted by the Commission.
(ii) The Registration Statement, when it became effective, and the
Prospectus and any amendment or supplement thereto, on the date of filing
thereof with the Commission, complied as to form in all material respects with
the requirements for registration statements on Form S-3 under the Securities
Act and the rules and regulations of the Commission thereunder, and each of the
documents incorporated by reference in the Registration Statement or the
Prospectus, or any amendment or supplement thereto, on the date of filing
thereof with the Commission, complied as to form in all material respects with
the requirements of the Exchange Act and the rules and regulations of the
Commission thereunder; it being understood, however, that we express no opinion
with respect to the financial statements, schedules or other financial data
included or incorporated by reference in, or omitted from, the Registration
Statement or the Prospectus or any other document. In passing upon the
compliance as to form of the Registration Statement and the Prospectus and any
other document, we have assumed that the statements made and incorporated by
reference therein are correct and complete.
In addition, we have participated in conferences with officers and
other representatives of the Company, representatives of the independent public
accountants for the Company, and your representatives, at which the contents of
the Registration Statement and the Prospectus and related matters were discussed
and, although we are not passing upon, and do not assume any responsibility for,
the accuracy, completeness or fairness of the statements contained or
incorporated by reference in the Registration Statement and the Prospectus and
have not made any independent check or verification thereof, during the course
of such participation, no facts came to our attention that caused us to believe
that the Registration Statement, at the time it became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or that the Prospectus, as of its date, contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; it being understood that we express no belief with respect
to the financial statements, schedules and other financial and statistical data
included or incorporated by reference in the Registration Statement or the
Prospectus.
*Note: "Registration Statement" and "Prospectus" will be defined to include
documents incorporated by reference therein ("Incorporated Documents").
