Texas Utilities Company
Common Stock
(without par value)
UNDERWRITING AGREEMENT
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, 1998
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as Representatives of the Underwriters
named in Schedule I hereto
c/o
Ladies and Gentlemen:
1. Introduction. Texas Utilities Company, a Texas
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corporation (the "Company"), proposes to issue and sell severally
to you and the other Underwriters named in Schedule I hereto (the
"Underwriters") for whom you are acting as Representatives, an
aggregate of shares of Common Stock, without par value
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(the "Shares").
2. Representations and Warranties of the Company.
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The Company represents and warrants to the several Underwriters
that:
(a) It has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on
Form S-3, including a prospectus, on , 1998
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(Registration No. 333- ) for the registration of
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$900,000,000 aggregate amount of the Company's (i) Debt
Securities, (ii) Common Stock, (iii) contracts to purchase
shares of Common Stock ("Stock Purchase Contracts") and (iv)
Stock Purchase Units, each representing ownership of a Stock
Purchase Contract and Debt Securities or obligations of
third parties, under the Securities Act of 1933, as amended
(the "Securities Act"). Such registration statement was
declared effective by the Commission on , 1998.
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References herein to the term "Registration Statement" as of
any date shall be deemed to refer to Registration Statement
No. 333- , as amended or supplemented to date,
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including all documents incorporated by reference therein as
of such date pursuant to Item 12 of Form S-3 ("Incorporated
Documents"); provided that if the Company files a
registration statement with the Commission pursuant to
Section 462(b) of the 1933 Act Regulations (the "Rule 462(b)
Registration Statement"), then after such filing, all
references to "Registration Statement" shall be deemed to
include the Rule 462(b) Registration Statement. References
herein to the term "Prospectus" as of any given date shall
be deemed to refer to the prospectus, including any
preliminary prospectus, forming a part of Registration
Statement No. 333- , as amended or supplemented as of
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such date, including all Incorporated Documents as of such
date and including any prospectus supplement relating to the
Securities. References herein to the term "Effective Date"
shall be deemed to refer to the later of the time and date
Registration Statement No. 333- was declared
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effective or the time and date of the filing thereafter of
the Company's most recent Annual Report on Form 10-K if such
filing is made prior to the Closing Date, as hereinafter
defined. The Company will not file any amendment to the
Registration Statement or supplement to the Prospectus on or
after the date of this Agreement and prior to the Closing
Date, as hereinafter defined, without prior notice to the
Underwriters, or to which Counsel for the Underwriters shall
reasonably object in writing. For the purposes of this
Agreement, any Incorporated Document filed with the
Commission on or after the date of this Agreement and prior
to the Closing Date, as hereinafter defined, shall be deemed
an amendment or supplement to the Registration Statement and
the Prospectus.
(b) On the Effective Date, the Registration Statement
and the prospectus included as part of the Registration
Statement fully complied and at the Closing Date, as
hereinafter defined, the Registration Statement, the
Prospectus will fully comply in all material respects with
the applicable provisions of the Securities Act, and the
applicable rules and regulations of the Commission
thereunder; on the Effective Date the Registration Statement
did not, and at the Closing Date, as hereinafter defined,
the Registration Statement 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; on the Effective Date the
Prospectus did not, and at the Closing Date, as hereinafter
defined, and on the date it is filed with the Commission
pursuant to Rule 424 of the General Rules and Regulations of
the Securities Act ("Rule 424"), the Prospectus will not,
contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; and on said dates the
Incorporated Documents, taken together as a whole, fully
complied or will comply in all material respects with the
applicable provisions of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the applicable
rules and regulations of the Commission thereunder, and,
when read together with the Prospectus on said dates did not
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; provided that the foregoing representations and
warranties in this paragraph (b) shall not apply to
statements or omissions made in reliance upon information
furnished in writing to the Company by, or on behalf of, any
Underwriter for use in connection with the preparation of
the Registration Statement or the Prospectus or to any
statements in or omissions from the Statements of
Eligibility and Qualification under the Trust Indenture Act
of 1939, as amended ("Trust Indenture Act"), or amendments
thereto, filed as exhibits to the Registration Statement.
3. Public Offering. On the basis of the
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representations and warranties herein contained, and subject to
the terms and conditions herein set forth, the Company shall sell
to each of the Underwriters, and each Underwriter shall purchase
from the Company, at the time and place herein specified,
severally and not jointly, the number of Shares set forth oppo-
site the name of such Underwriter in Schedule I attached hereto.
The Underwriters agree to make a public offering of such shares.
The Underwriters have advised the Company that the Shares will be
offered to the public at $ per share and to certain
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dealers selected by you at a price of which represents a
concession not in excess of cents a share under the public
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offering price, and that any Underwriter may allow, and such
dealers may reallow, a concession, not in excess of cents a
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share, to other Underwriters or certain other dealers.
4. Time and Place of Closing. Delivery of the Shares
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against payment therefor by wire transfer in federal funds shall
be made at the office of Xxxx & Priest LLP, 00 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, at 10:00 A.M., New York Time, on ,
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1998, or at such other place, time and date as shall be agreed
upon in writing by the Company and you or established in
accordance with the following paragraph. The hour and date of
such delivery and payment are herein called the "Closing Date".
The Shares shall be delivered to you registered in such names and
in such denominations as you shall reasonably request in writing
not later than the close of business on the third business day
prior to the Closing Date, or, to the extent not so requested,
registered in your name.
If any Underwriter shall fail or refuse (otherwise than for
some reason sufficient to justify, in accordance with the terms
hereof, the cancellation or termination of its obligations
hereunder) to purchase and pay for the Shares that such
Underwriter has agreed to purchase and pay for hereunder, the
Company shall immediately give notice to the other Underwriters
of the default of such Underwriter, and the other Underwriters
shall have the right within 24 hours after the receipt of such
notice to determine to purchase, or to procure one or more
others, who are members of the National Association of Shares
Dealers, Inc. ("NASD") (or, if not members of the NASD, who are
not eligible for membership in the NASD and who agree (i) to make
no sales within the United States, its territories or its
possessions or to persons who are citizens thereof or residents
therein and (ii) in making sales to comply with the NASD's
Conduct Rules and satisfactory to the Company, to purchase, upon
the terms herein set forth, the Shares that the defaulting
Underwriter had agreed to purchase. If any non-defaulting
Underwriter or Underwriters shall give written notice to the
Company of the determination in that regard within 24 hours after
receipt of notice of any such default, and thereupon the Closing
Date shall be postponed for such period, not exceeding three
business days, as the Company shall determine. If in the event
of such a default no non-defaulting Underwriter shall give such
notice, then this Agreement may be terminated by the Company,
upon like notice given to the non-defaulting Underwriters, within
a further period of 24 hours. If in such case the Company shall
not elect to terminate this Agreement, it shall have the right,
irrespective of such default:
(a) to require each non-defaulting Underwriter to
purchase and pay for the Shares that it had agreed to
purchase hereunder as hereinafter provided and, in addition,
the Shares that the defaulting Underwriter shall have so
failed to purchase; provided, however, that no non-
defaulting Underwriter shall be required to purchase such
additional Shares in an amount exceeding one-ninth (1/9) of
the number of Shares that such non-defaulting Underwriter
has otherwise agreed to purchase hereunder, and/or
(b) to procure one or more persons, reasonably
acceptable to the Representatives, who are members of the
NASD (or, if not members of the NASD, who are not eligible
for membership in the NASD and who agree (i) to make no
sales within the United States, its territories or its
possessions or to persons who are citizens thereof or
residents therein and (ii) in making sales to comply with
the NASD's Rules of Fair Practice), to purchase, upon the
terms herein set forth, either all or a part of the Shares
that such defaulting Underwriter had agreed to purchase or
that portion thereof that the remaining Underwriters shall
not be obligated to purchase pursuant to the foregoing
clause (a).
In the event the Company shall exercise its rights under (a)
and/or (b) above, the Company shall give written notice thereof
to the non-defaulting Underwriters within such further period of
24 hours, and thereupon the Closing Date shall be postponed for
such period, not exceeding three business days, as the Company
shall determine.
In the computation of any period of 24 hours referred to in
this Section 4, there shall be excluded a period of 24 hours in
respect of each Saturday, Sunday or legal holiday that would
otherwise be included in such period of time.
Any action taken by the Company under this Section 4 shall
not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
Termination by the Company under this Section 4 shall be without
liability on the part of the Company or any non-defaulting
Underwriter, except as otherwise provided in Sections 5(g) and 8
hereof.
5. Covenants of the Company. The Company agrees
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that:
(a) It will promptly deliver to you a signed copy of
the Registration Statement as originally filed or, to the
extent a signed copy is not available, a conformed copy,
certified by an officer of the Company to be in the form as
originally filed, including all Incorporated Documents and
exhibits and of all amendments thereto.
(b) It will deliver to you, as soon as practicable
after the date hereof, as many copies of the Prospectus as
of such date as you may reasonably request.
(c) It will cause the Prospectus to be filed with the
Commission pursuant to Rule 424 as soon as practicable and
advise you of the issuance of any stop order under the
Securities Act with respect to the Registration Statement or
the institution of any proceedings therefor of which the
Company shall have received notice. The Company will use
its best efforts to prevent the issuance of any such stop
order and to secure the prompt removal thereof if issued.
(d) If, during such period of time (not exceeding nine
months) after the Prospectus has been filed with the
Commission pursuant to Rule 424 as in the opinion of Counsel
for the Underwriters a prospectus covering the Shares is
required by law to be delivered in connection with sales by
an Underwriter or a dealer, any event relating to or
affecting the Company or of which the Company shall be
advised in writing by you shall occur that in the Company's
reasonable opinion after consultation with Counsel for the
Underwriters should be set forth in a supplement to, or an
amendment of, the Prospectus in order to make the Prospectus
not misleading in the light of the circumstances when it is
delivered to a purchaser, the Company will, at its expense,
amend or supplement the Prospectus by either (i) preparing
and furnishing to you at the Company's expense a reasonable
number of copies of a supplement or supplements or an
amendment or amendments to the Prospectus or (ii) making an
appropriate filing pursuant to Section 13 of the Exchange
Act, which will supplement or amend the Prospectus so that,
as supplemented or amended, it will not contain any untrue
statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in
the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading; provided that
should such event relate solely to the activities of any of
the Underwriters, then the Underwriters shall assume the
expense of preparing and furnishing any such amendment or
supplement. In case any Underwriter is required to deliver
a prospectus after the expiration of nine months from the
date the Prospectus is filed with the Commission pursuant to
Rule 424, the Company, upon your request, will furnish to
you, at your expense, a reasonable quantity of a
supplemental prospectus or supplements to the Prospectus
complying with Section 10(a) of the Securities Act.
(e) It will make generally available to its security
holders, as soon as practicable, an earnings statement
(which need not be audited) covering a period of at least
twelve months beginning not earlier than the first day of
the month next succeeding the month in which occurred the
effective date of the Registration Statement as defined in
Rule 158 under the Securities Act.
(f) It will furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the
Shares for offer and sale under the blue-sky laws of such
jurisdictions as you may designate, provided that the
Company shall not be required to qualify as a foreign
corporation or dealer in securities, to file any consents to
service of process under the laws of any jurisdiction, or to
meet any other requirements deemed by the Company to be
unduly burdensome.
(g) It will, except as herein provided, pay all
expenses and taxes (except transfer taxes) in connection
with (i) the preparation and filing by it of the
Registration Statement, (ii) the issuance and delivery of
the Shares as provided in Section 4 hereof, (iii) the
qualification of the Shares under blue-sky laws (including
counsel fees not to exceed $7,500), and (iv) the printing
and delivery to the Underwriters of reasonable quantities of
the Registration Statement and, except as provided in
Section 5(d) hereof, of the Prospectus. The Company shall
not, however, be required to pay any amount for any expenses
of yours, except that, if this Agreement shall be terminated
in accordance with the provisions of Section 5, 6 or 9
hereof, the Company will reimburse you for the fees and
disbursements of Counsel for the Underwriters, whose fees
and disbursements the Underwriters agrees to pay in any
other event, and will reimburse the Underwriters for their
reasonable out-of-pocket expenses, in an aggregate amount
not exceeding $5,000, incurred in contemplation of the
performance of this Agreement. The Company shall not in any
event be liable to any of the several Underwriters for
damages on account of loss of anticipated profits.
6. Conditions of Underwriters' Obligations. The
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obligations of the Underwriters to purchase and pay for the
Shares shall be subject to the accuracy of the representations
and warranties made herein on the part of the Company, to the
performance by the Company of its obligations to be performed
hereunder prior to the Closing Date, and to the following
conditions:
(a) The Prospectus shall have been filed with the
Commission pursuant to Rule 424 prior to 5:30 P.M., New York
Time, on the second business day after the date of this
Agreement, or such other time and date as may be approved by
you.
(b) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no
proceedings for that purpose shall be pending before, or
threatened by, the Commission on the Closing Date; and you
shall have received a certificate, dated the Closing Date
and signed by an officer of the Company, to the effect that
no such stop order is in effect and that no proceedings for
such purpose are pending before, or to the knowledge of the
Company threatened by, the Commission.
(c) On the Closing Date, you shall have received from
Xxxxxxx, Xxxxxxxx & Xxxxxxxxxx, L.L.P., General Counsel for
the Company, Xxxx & Priest LLP, of counsel for the Company,
and Winthrop, Stimson, Xxxxxx & Xxxxxxx, Counsel for the
Underwriters, opinions in substantially the form and
substance prescribed in Schedules II, III and IV hereto (i)
with such changes therein as may be agreed upon by the
Company and you, with the approval of Counsel for the
Underwriters, and (ii) if the Prospectus relating to the
Shares shall be supplemented or amended after the Prospectus
shall have been filed with the Commission pursuant to Rule
424, with any changes therein necessary to reflect such
supplementation or amendment.
(d) On and as of the date hereof you shall have
received from Deloitte & Touche LLP a letter to the effect
that (i) they are independent certified public accountants
with respect to the Company, within the meaning of the
Securities Act and the applicable published rules and
regulations thereunder, (ii) in their opinion, the financial
statements audited by them and included or incorporated by
reference in the Prospectus comply as to form in all
material respects with the applicable accounting
requirements of the Exchange Act and the published rules and
regulations thereunder, (iii) on the basis of a reading of
the unaudited amounts of operating revenues and net income
included or incorporated by reference in the Prospectus and
the related financial statements from which these amounts
were derived, the latest available unaudited financial
statements of the Company and the minute books of the
Company and inquiries of officers of the Company who have
responsibility for financial and accounting matters (it
being understood that the foregoing procedures do not
constitute an audit made in accordance with generally
accepted auditing standards and would not necessarily reveal
matters of significance with respect to the comments made in
such letter, and accordingly that Deloitte & Touche LLP
makes no representation as to the sufficiency of such
procedures for the several Underwriters' purposes), nothing
has come to their attention that caused them to believe that
(A) the unaudited financial statements incorporated by
reference in the Prospectus were not determined in accor-
dance with generally accepted accounting principles applied
on a basis substantially consistent with that of the
corresponding amounts in the latest available audited
financial statements, (B) the unaudited amounts of operating
revenues and net income of the Company included or
incorporated by reference in the Prospectus were not
determined on a basis substantially consistent with that of
the corresponding amounts in the audited statements of
income incorporated by reference in the Prospectus, (C) for
the months ended as of the date of the latest available
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financial statements of the Company, there were any
decreases in operating revenues or net income as compared
with the comparable period of the preceding year, and (D) at
a specified date not more than seven days prior to the date
of such letter, there was any change in the capital stock of
the Company, short-term bank loans, commercial paper, notes
payable or long-term debt of the Company or decrease in its
net assets, in each case as compared with amounts shown in
the most recent balance sheet incorporated by reference in
the Prospectus, except in all instances for changes or
decreases that the Prospectus discloses have occurred or may
occur or which are occasioned by the declaration of a
regular quarterly dividend or the acquisition of long-term
debt for sinking fund purposes, or that are described in
such letter, and (iv) they have compared the dollar amounts
(or percentages or ratios derived from such dollar amounts)
and other financial information included or incorporated by
reference in the Registration Statement and the Prospectus
as reasonably requested by you (in each case to the extent
that such dollar amounts, percentages and other financial
information are derived from the general accounting records
of the Company subject to the internal controls of the
Company's accounting system or are derived indirectly from
such records by analysis or computation) with the results
obtained from inquiries, a reading of such general
accounting records and other procedures specified in such
letter, and have found such dollar amounts, percentages and
other financial information to be in agreement with such
results, except as otherwise specified in such letter.
(e) Since the most recent dates as of which in-
formation is given in the Registration Statement or the
Prospectus, there shall not have been any material adverse
change in the business, property or financial condition of
the Company and its subsidiaries, considered as a whole,
whether or not in the ordinary course of business, and,
since such dates, there shall not have been any material
transaction entered into by the Company, other than transac-
tions in the ordinary course of business and transactions
contemplated by the Registration Statement or Prospectus,
and at the Closing Date you shall have received a
certificate to such effect dated the Closing Date and signed
by an officer of the Company.
(f) All legal proceedings to be taken in connection
with the issuance and sale of the Shares shall have been
satisfactory in form and substance to Counsel for the
Underwriters.
In case any of the conditions specified above in this
Section 6 shall not have been fulfilled, this Agreement may be
terminated by the Representatives upon notice thereof to the
Company. Any such termination shall be without liability of any
party to any other party except as otherwise provided in Sections
5(g) and 8 hereof.
7. Conditions of Company's Obligations. The
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obligation of the Company to deliver the Shares shall be subject
to the conditions that the Prospectus shall have been filed with
the Commission pursuant to Rule 424 prior to 5:30 P.M., New York
Time, on the second business day after the date of this Agreement
or such other time and date as may be approved by the Company,
and no stop order suspending the effectiveness of the
Registration Statement shall be in effect at the Closing Date and
no proceedings for that purpose shall be pending before, or
threatened by, the Commission at the Closing Date. In case these
conditions shall not have been fulfilled, this Agreement may be
terminated by the Company upon notice thereof to you. Any such
termination shall be without liability of any party to any other
party except as otherwise provided in Sections 5(g) and 8 hereof.
8. Indemnification.
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(a) The Company shall indemnify, defend and hold
harmless each Underwriter and each person who controls each
Underwriter within the meaning of Section 15 of the
Securities Act from and against any and all losses, claims,
damages or liabilities, joint or several, to which they or
any of them may become subject under the Securities Act or
any other statute or common law and shall reimburse each
such Underwriter and controlling person for any legal or
other expenses (including, to the extent hereinafter
provided, reasonable counsel fees) incurred by them in
connection with investigating any such losses, claims,
damages or liabilities or in connection with defending any
actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based
upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the
Prospectus, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading;
provided, however, that the indemnity agreement contained in
this Section 8 shall not apply to any such losses, claims,
damages, liabilities, expenses or actions arising out of, or
based upon, any such untrue statement or alleged untrue
statement, or any such omission or alleged omission, if such
statement or omission was made in reliance upon information
furnished in writing to the Company by any Underwriter, or
Counsel for the Underwriters, for use in connection with the
preparation of the Registration Statement or the Prospectus
or any amendment or supplement to either thereof, or arising
out of, or based upon, statements in or omissions from that
part of the Registration Statement that shall constitute the
Statements of Eligibility and Qualification under the Trust
Indenture Act of any Trustee with respect to any indenture
qualified pursuant to the Registration Statement; and
provided further, that the indemnity agreement contained in
this Section 8 shall not inure to the benefit of any
Underwriter (or of any person controlling such Underwriter)
on account of any such losses, claims, damages, liabilities,
expenses or actions arising from the sale of the Shares to
any person if a copy of the Prospectus (exclusive of the
Incorporated Documents) shall not have been given or sent to
such person by or on behalf of such Underwriter with or
prior to the written confirmation of the sale involved
unless the alleged omission or alleged untrue statement was
not corrected in the Prospectus at the time of such written
confirmation. The indemnity agreement of the Company
contained in this Section 8 and the representations and
warranties of the Company contained in Section 2 hereof
shall remain operative and in full force and effect
regardless of any termination of this Agreement or of any
investigation made by or on behalf of any Underwriter or any
such controlling person, and shall survive the delivery of
the Shares.
(b) Each Underwriter shall indemnify, defend and hold
harmless the Company, its officers and directors, and each
person who controls the Company within the meaning of
Section 15 of the Securities Act, from and against any and
all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject
under the Securities Act or any other statute or common law
and shall reimburse each of them for any legal or other
expenses (including, to the extent hereinafter provided,
reasonable counsel fees) incurred by them in connection with
investigating any such losses, claims, damages or
liabilities or in connection with defending any actions,
insofar as such losses, claims, damages, liabilities,
expenses or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the
Prospectus, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, if
such statement or omission was made in reliance upon
information furnished in writing to the Company by the
Underwriter, through you or Counsel for the Underwriters,
for use in connection with the preparation of the
Registration Statement or the Prospectus or any amendment or
supplement to either thereof. Each Underwriter hereby
furnishes to the Company in writing expressly for use in the
Prospectus (i) the statements relating to offerings by the
Underwriters on the cover page, (ii) the statements in the
first paragraph on page concerning overallotments and
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other transactions by the Underwriters, and (iii) under
"Underwriting," the statements in the , , and
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paragraphs. The indemnity agreement of the
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respective Underwriters contained in this Section 8 shall
remain operative and in full force and effect regardless of
any termination of this Agreement or of any investigation
made by or on behalf of the Company, its directors or its
officers, any such Underwriter, or any such controlling
person, and shall survive the delivery of the Shares.
(c) The Company and the several Underwriters each
shall, upon the receipt of notice of the commencement of any
action against it or any person controlling it as aforesaid,
in respect of which indemnity may be sought on account of
any indemnity agreement contained herein, promptly give
written notice of the commencement thereof to the party or
parties against whom indemnity shall be sought hereunder,
but the failure so to notify such indemnifying party or
parties of any such action shall not relieve such
indemnifying party or parties from any liability hereunder
to the extent it is not materially prejudiced as a result of
such failure to notify and in any event shall not relieve it
from any liability that it or they may have to the
indemnified party otherwise than on account of such
indemnity agreement. In case such notice of any such action
shall be so given, such indemnifying party shall be entitled
to participate at its own expense in the defense, or, if it
so elects, to assume (in conjunction with any other
indemnifying parties) the defense of such action, in which
event such defense shall be conducted by counsel chosen by
such indemnifying party or parties and satisfactory to the
indemnified party or parties who shall be defendant or
defendants in such action, and such defendant or defendants
shall bear the fees and expenses of any additional counsel
retained by them; but if the indemnifying party shall elect
not to assume the defense of such action, such indemnifying
party will reimburse such indemnified party or parties for
the reasonable fees and expenses of any counsel retained by
them; provided, however, if the defendants in any such
action (including impleaded parties) include both the
indemnified party and the indemnifying party and counsel for
the indemnifying party shall have reasonably concluded that
there may be a conflict of interest involved in the
representation by a single counsel of both the indemnifying
party and the indemnified party, the indemnified party or
parties shall have the right to select separate counsel,
satisfactory to the indemnifying party (it being understood,
however, that the indemnifying party shall not be liable for
the expenses of more than one separate counsel (in addition
to local counsel) representing the indemnified parties who
are parties to such action). Each of the Company and the
Underwriters agrees that without the other party's prior
written consent, which consent shall not be unreasonably
withheld, it will not settle, compromise or consent to the
entry of any judgment in any claim in respect of which
indemnification may be sought under the indemnification
provision of this Agreement, unless such settlement,
compromise or consent (i) includes an unconditional release
of such other party from all liability arising out of such
claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on
behalf of such other party.
(d) If the indemnification provided for in sub-
paragraph (a) or (b) above shall be unenforceable under
applicable law by an indemnified party, each indemnifying
party agrees to contribute to such indemnified party with
respect to any and all losses, claims, damages, liabilities
and expenses for which each such indemnification provided
for in subparagraph (a) or (b) above shall be unenforceable,
in such proportion as shall be appropriate to reflect (i)
the relative fault of each indemnifying party on the one
hand and the indemnified party on the other in connection
with the statements or omissions that have resulted in such
losses, claims, damages, liabilities and expenses, (ii) the
relative benefits received by the Company on the one hand
and the Underwriters on the other hand from the offering of
the Shares pursuant to this Agreement, and (iii) any other
relevant equitable considerations; provided, however, that
no indemnified party guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any indemnifying
party not guilty of such fraudulent misrepresentation.
Relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by
such indemnifying party or the indemnified party and each
such party's relative intent, knowledge, access to
information and opportunity to correct or prevent such
untrue statement or omission. The Company and each of the
Underwriters agree that it would not be just and equitable
if contributions pursuant to this subparagraph (d) were to
be determined by pro rata allocation or by any other method
of allocation that does not take account of the equitable
considerations referred to above. Notwithstanding the
provisions of this Section 8, no Underwriter shall be
required to contribute in excess of the amount equal to the
excess of (i) the total price at which the Shares
underwritten by it were offered to the public, over (ii) the
amount of any damages which the Underwriter has otherwise
been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission. The
obligations of each Underwriter to contribute pursuant to
this Section 8 are several and not joint and shall be in the
same proportion of all contributions of Underwriters
required hereunder as such Underwriter's obligation to
underwrite Shares is of the total amount of Shares set forth
in Schedule I hereto.
9. Termination. This Agreement may be terminated, at
-----------
any time prior to the Closing Date, by the Representatives if
(a) after the date hereof and at or prior to the Closing Date
there shall have occurred any suspension or material limitation
of trading of any of the Company's securities on the New York
Stock Exchange, Inc. ("NYSE") or any general suspension of
trading in securities on the NYSE, the American Stock Exchange,
Inc. ("AMEX") or the NASDAQ Stock Market, Inc. ("NASDAQ") or
there shall have been established by the NYSE, AMEX or NASDAQ or
by the Commission or by any federal or state agency or by the
decision of any court, any general limitation on prices for such
trading or any general restrictions on the distribution of
securities, or a general banking moratorium declared by New York
or federal authorities, or (b) there shall have occurred any (i)
new material outbreak of hostilities or (ii) new material other
national or international calamity or crisis, including, but not
limited to, an escalation of hostilities that existed prior to
the date of this Agreement or (iii) material adverse change in
the financial markets in the United States, and the effect of any
such event specified in clause (a) or (b) above on the financial
markets of the United States shall be such as to make it
impracticable, in the reasonable judgment of the Underwriters,
for the Underwriters to enforce contracts for the sale of the
Shares. This Agreement may also be terminated at any time prior
to the Closing Date by the Representatives if, in your reasonable
judgment, the subject matter of any amendment or supplement to
the Registration Statement or the Prospectus (other than an
amendment or supplement relating solely to the activity of any
Underwriter or Underwriters) prepared and issued by the Company
after the effectiveness of this Agreement shall have disclosed a
material adverse change in the business, property or financial
condition of the Company and its subsidiaries, considered as a
whole, that has materially impaired the marketability of the
Shares. Any termination hereof pursuant to this Section 9 shall
be without liability of any party to any other party except as
otherwise provided in Sections 5(g) and 8 hereof.
10. Miscellaneous. THE VALIDITY AND INTERPRETATION OF
-------------
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK. This Agreement shall inure to the benefit of the Company,
the several Underwriters and, with respect to the provisions of
Section 8 hereof, each director, officer and controlling person
referred to in said Section 8, and their respective successors.
Nothing herein is intended or shall be construed to give to any
other person, firm or corporation any legal or equitable right,
remedy or claim under or in respect of any provision in this
Agreement. The term "successor" as used herein shall not include
any purchaser, as such purchaser, of any of the Shares from the
Underwriter.
11. Notices. All communications hereunder shall be in
-------
writing, and, if to the Underwriters, shall be mailed or
delivered to you at the address set forth above, or, if to the
Company, shall be mailed or delivered to it at 0000 Xxxxx Xxxxxx,
Xxxxxx, Xxxxx 00000, Attention: Treasurer.
If the foregoing is in accordance with your
understanding of our agreement, please indicate your acceptance
thereof in the space provided below for that purpose, whereupon
this letter and your acceptance shall constitute a binding
agreement between the Company and the several Underwriters in
accordance with its terms.
Very truly yours,
TEXAS UTILITIES COMPANY
By
------------------------------
Accepted and delivered as of
the date first above written
BY
By
-----------------------
SCHEDULE I
----------
Texas Utilities Company
Common Stock
Name of Underwriter Number of Shares
------------------- ----------------
SCHEDULE II
[Letterhead of Xxxxxxx, Xxxxxxxx & Xxxxxxxxxx, L.L.P.]
, 1998
---------
as Representatives of the Underwriters named in the
Underwriting Agreement, dated , 1998,
---------
between Texas Utilities Company and the Underwriters
Ladies and Gentlemen:
With reference to the issuance and sale by Texas
Utilities Company (the "Company") of shares of its common stock,
without par value ("Stock"), pursuant to the Underwriting
Agreement referred to above (the "Underwriting Agreement"), we
advise that we have acted as counsel to the Company in connection
with such issuance and sale, and have participated in the
preparation of the Registration Statement and Prospectus (such
terms having the same meaning herein as in the Underwriting
Agreement) filed by the Company under the Securities Act of 1933,
as amended (the "Securities Act"). We have not examined the
certificates for the Stock, except a specimen thereof, and have
relied upon a certificate of the transfer agent and registrar as
to the execution thereof.
Upon the basis of our familiarity with these
transactions and with the affairs and properties of the Company
generally, we are of the opinion that:
1. The Company is a corporation duly authorized,
validly existing and in good standing under the laws of the State
of Texas, and has the corporate power and authority: (a) to
execute, deliver and perform its obligations under the
Underwriting Agreement, (b) to issue the Stock and (c) to own its
property and assets and to conduct the business which it is now
conducting;
2. The Underwriting Agreement has been duly
authorized, executed and delivered by the Company;
3. The Stock has been legally issued is fully paid
and non-assessable and conforms as to legal matters with the
statements concerning it made in the Prospectus;
4. The Registration Statement, as of the Effective
Date, and the Prospectus, at the time it was filed with the
Commission pursuant to Rule 424 under the Securities Act, (except
for financial statements and schedules and financial and
statistical data as to which we do not express any belief and
except for those parts of the Registration Statement that
constitute the Form T-1) complied as to form in all material
respects with the applicable requirements of the Securities Act
and the applicable instructions, rules and regulations of the
Commission thereunder; the Incorporated Documents (except as to
the financial statements and schedules and other financial and
statistical data contained therein, as to which we do not express
any belief), at the time they were filed with the Commission,
complied as to form in all material respects with the
requirements of the Exchange Act and the applicable instructions,
rules and regulations of the Commission thereunder; and the
Registration Statement has become and is effective under the
Securities Act and, to our best knowledge, no proceedings for a
stop order with respect thereto are pending or threatened under
Section 8 of the Securities Act;
5. No other approval, authorization, consent or order
of any public board or body (other than in connection or in
compliance with the provisions of the blue-sky laws of any
jurisdiction) is legally required for the authorization of the
issue and sale by the Company of the Stock; and
6. The Stock has been listed, on official notice of
issuance, on the New York, Chicago and Pacific stock exchanges.
In the course of the preparation of the
information relating to the Company contained in the Registration
Statement and the Prospectus (including the documents
incorporated therein by reference), we had discussions with
certain of its officers and representatives, with other counsel
for the Company, with Deloitte & Touche LLP, the independent
certified public accountants who audited certain of the financial
statements contained in the Registration Statement and the
Prospectus, and with certain of your officers and employees and
your counsel, but we made no independent verification of the
accuracy or completeness of the representations and statements
made to us by the Company or the information included by the
Company in the Registration Statement and the Prospectus and take
no responsibility therefor except as set forth in paragraph 3
above. However, our examination of the information relating to
the Company contained in the Registration Statement and the
Prospectus and our discussions did not disclose to us anything
which gives us reason to believe that (except for financial
statements and schedules and financial and statistical data as to
which we do not express any belief and except for those parts of
the Registration Statement that constitute the Form T-1) (i) the
Registration Statement, as of the Effective Date, included 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 (ii) the Prospectus, at
the time it was filed with the Commission pursuant to Rule 424
under the Securities Act, included, or on the date hereof
includes, an untrue statement of a material fact or on such dates
omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading.
The Registration Statement, as of the Effective Date,
and the Prospectus, at the time it was filed with the Commission
pursuant to Rule 424 under the Securities Act, (except as to the
financial statements and schedules and other financial and
statistical data contained therein as to which we do not express
any belief and except for those parts of the Registration
Statement that constitute the Forms T-1) complied as to form in
all material respects with the applicable requirements of the
Securities Act and the applicable instructions, rules and
regulations of the Commission thereunder; the Incorporated
Documents (except as to the financial statements and schedules
and other financial and statistical data contained therein, as to
which we do not express any belief), at the time they were filed
with the Commission, complied as to form in all material respects
with the requirements of the Exchange Act and the applicable
under the Securities Act and, to our best knowledge, no
proceedings for a stop order with respect thereto are pending or
threatened under Section 8 of the Securities Act.
The statements made on our authority as to matters of
law and legal conclusions in the Registration Statement and
Prospectus have been reviewed by us and in our opinion are
correct.
Very truly yours,
XXXXXXX, XXXXXXXX &
XXXXXXXXXX, L.L.P.
By:
-------------------------
A Partner
SCHEDULE III
[Letterhead of Xxxx & Priest LLP]
New York, New York
, 1998
---------
as Representatives of the Underwriters named in the
Underwriting Agreement, dated , 1998,
---------
between Texas Utilities Company and the Underwriters
Ladies and Gentlemen:
We have acted as counsel to Texas Utilities Company
(the "Company") in connection with the issuance by the Company of
shares of its common stock, without par value ("Stock")
-----
pursuant to the Underwriting Agreement dated , 1998
---------
between the Company and the Underwriters (the "Underwriting
Agreement").
Terms not otherwise defined herein are used with the
meanings ascribed to them in the Underwriting Agreement.
In so acting we have participated in the preparation of
the Registration Statement, including the Incorporated Documents,
and the Prospectus. We have examined such execution thereof
documents and satisfied ourselves as to such matters as we have
deemed necessary as a basis for the conclusions of law contained
in the opinions expressed below. We have relied as to various
questions of fact upon the representations and warranties of the
Company contained in the Underwriting Agreement and, where we
deemed appropriate, on certificates of public officials. We have
not examined the certificates for the Stock, except a specimen
thereof, and have relied upon a certificate of the transfer agent
and registrar as to the execution thereof.
Upon the basis of our familiarity with these
transactions and with the affairs and properties of the Company
generally, we are of the opinion that:
1. The Underwriting Agreement has been duly
authorized, executed and delivered by the Company;
2. The Stock has been legally issued is fully paid
and non-assessable and conforms as to legal matters with the
statements concerning it made in the Prospectus;
3. The Registration Statement, as of the Effective
Date, and the Prospectus, at the time it was filed with the
Commission pursuant to Rule 424 under the Securities Act, (except
for financial statements and schedules and financial and
statistical data as to which we do not express any belief and
except for those parts of the Registration Statement that
constitute the Form T-1) complied as to form in all material
respects with the applicable requirements of the Securities Act
and the applicable instructions, rules and regulations of the
Commission thereunder; the Incorporated Documents (except as to
the financial statements and schedules and other financial and
statistical data contained therein, as to which we do not express
any belief), at the time they were filed with the Commission,
complied as to form in all material respects with the
requirements of the Exchange Act and the applicable instructions,
rules and regulations of the Commission thereunder; and the
Registration Statement has become and is effective under the
Securities Act and, to our best knowledge, no proceedings for a
stop order with respect thereto are pending or threatened under
Section 8 of the Securities Act;
4. No other approval, authorization, consent or order
of any public board or body (other than in connection or in
compliance with the provisions of the blue-sky laws of any
jurisdiction) is legally required for the authorization of the
issue and sale by the Company of the Stock; and
5. The Stock has been listed, on official notice of
issuance, on the New York, Chicago and Pacific stock exchanges.
In the course of the preparation of the information
relating to the Company contained in the Registration Statement
and the Prospectus (including the documents incorporated therein
by reference) we had discussions with certain of its officers and
representatives, with other counsel for the Company, with
Deloitte & Touche LLP, the independent certified public
accountants who audited certain of the financial statements
contained in the Registration Statement and the Prospectus, and
with certain of your officers and employees and your counsel, but
we made no independent verification of the accuracy or
completeness of the representations and statements made to us by
the Company or the information included by the Company in the
Registration Statement and the Prospectus and take no
responsibility therefor except as set forth in paragraph 3 above.
However, our examination of the information relating to the
Company contained in the Registration Statement and the
Prospectus and our discussions did not disclose to us anything
which gives us reason to believe that (except as to the financial
statements and schedules and other financial and statistical data
contained therein, as to which we do not express any belief, and
except for those parts of the Registration Statement that
constitute the Forms T-1) (i) the Registration Statement, as of
the Effective Date, included 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 (ii) the Prospectus, at the time it was filed with
the Commission pursuant to Rule 424 under the Securities Act,
included, or on the date hereof includes, an untrue statement of
a material fact or on such dates omitted or omits to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
We are members of the New York Bar and do not hold
ourselves out as experts in the laws of the State of Texas. As
to all matters of Texas law, we have, with your consent, relied
upon the opinion of Xxxxxxx, Xxxxxxxx & Xxxxxxxxxx, L.L.P.,
Dallas, Texas, General Counsel for the Company. We believe that
you and we are justified in relying on such opinion.
Very truly yours,
XXXX & PRIEST LLP
SCHEDULE IV
[Letterhead of Winthrop, Stimson, Xxxxxx & Xxxxxxx]
, 1998
---------
as Representatives of the Underwriters named in the
Underwriting Agreement, dated , 1998,
---------
between Texas Utilities Company and the Underwriters
Ladies and Gentlemen:
We have acted as counsel to the Underwriters in
connection with your purchase from Texas Utilities Company (the
"Company") of shares of its common stock, without par value
-----
("Stock") pursuant to the Underwriting Agreement, dated
, 1998, between you and the Company (the "Underwriting
----------
Agreement").
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of the State of Texas. We
have, with your consent, relied upon an opinion of even date
herewith addressed to you by Xxxxxxx, Xxxxxxxx & Xxxxxxxxxx,
L.L.P., of Dallas, Texas, General Counsel for the Company, as to
the matters covered in such opinion relating to Texas law. We
have reviewed such opinion and believe that it is satisfactory
and that you and we are justified in relying thereon. We have
also reviewed the opinion of Xxxx & Priest LLP required by
paragraph (c) of Section 6 of the Underwriting Agreement, and we
believe such opinion to be satisfactory.
We have, in addition, examined the documents described
in the list of closing papers as having been delivered to you at
the closing and such other documents and satisfied ourselves as
to such other matters as we have deemed necessary in order to
enable us to express this opinion. We have not examined the
certificate for the Stock, except specimens thereof, and have
relied upon a certificate of the transfer agent and registrar as
to the authentication thereof. As to various questions of fact
material to this opinion, we have relied upon representations of
the Company and statements in the Registration Statement
hereinafter mentioned. In such examination we have assumed the
genuineness of all signatures, the authenticity of all documents
submitted to us and the genuineness and conformity to original
documents of documents submitted to us as certified or
photostatic copies.
Based on the foregoing, we are of the opinion that:
1. The Underwriting Agreement has been duly
authorized, executed and delivered by the Company;
2. The Stock has been legally issued, is fully paid
and non-assessable;
3. The Stock conforms as to legal matters with the
statements concerning it made in the Prospectus.
4. The Registration Statement, as of the Effective
Date, and the Prospectus, at the time it was filed with the
Commission pursuant to Rule 424 under the Securities Act, (except
for financial statements and schedules and financial and
statistical data as to which we do not express any belief and
except for those parts of the Registration Statement that
constitute the Form T-1) complied as to form in all material
respects with the applicable requirements of the Securities Act
and the applicable instructions, rules and regulations of the
Commission thereunder; the Incorporated Documents (except as to
the financial statements and schedules and other financial and
statistical data contained therein, as to which we do not express
any belief), at the time they were filed with the Commission,
complied as to form in all material respects with the
requirements of the Exchange Act and the applicable instructions,
rules and regulations of the Commission thereunder; and the
Registration Statement has become and is effective under the
Securities Act and, to our best knowledge, no proceedings for a
stop order with respect thereto are pending or threatened under
Section 8 of the Securities Act; and
5. No other approval, authorization, consent or order
of any public board or body (other than in connection or in
compliance with the provisions of the blue-sky laws of any
jurisdiction) is legally required for the authorization of the
issue and sale by the Company of the Shares; and
6. The Stock has been listed, on official notice of
issuance, on the New York, Chicago and Pacific stock exchanges.
In passing upon the form of the Registration Statement and the
form of the Prospectus, we necessarily assume the correctness and
completeness of the statements made by the Company and the
information included in the Registration Statement and the
Prospectus and take no responsibility therefor, except insofar as
such statements relate to us and as set forth in paragraph 3
above. In the course of the preparation by the Company of the
Registration Statement and the Prospectus, we have had discus-
sions with certain of its officers and representatives, with
counsel for the Company, with Deloitte & Touche LLP, the
independent public accountants who audited certain of the
financial statements incorporated by reference in the
Registration Statement and the Prospectus, and with certain of
your representatives. Our examination of the Registration
Statement and the Prospectus and our discussions did not disclose
to us any information which gives us reason to believe that at
the Effective Date the Registration Statement 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, at the time it was
filed with the Commission pursuant to Rule 424, or at the date
hereof, included or includes any untrue statement of a material
fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. We do
not express any opinion or belief as to the financial statements
or other financial or statistical data contained or incorporated
by reference in the Registration Statement or the Prospectus or
as to those parts of the Registration Statement that constitute
the Forms T-1.
This opinion is given to you solely for your use in
connection with the Underwriting Agreement and the transactions
contemplated thereunder and may not be relied upon by any other
person or for any other purpose.
Very truly yours,
WINTHROP, STIMSON, XXXXXX
& XXXXXXX
