SOUTHWESTERN ENERGY COMPANY
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(Debt Securities)
November __, 1995
From time to time, Southwestern Energy Company, an Arkansas
corporation (the "Company"), may enter into one or more underwriting
agreements that provide for the sale of designated securities to the several
underwriters named therein. The standard provisions set forth herein may be
incorporated by reference in any such underwriting agreement (an "Underwriting
Agreement"). The Underwriting Agreement, including the provisions
incorporated therein by reference, is herein sometimes referred to as this
Agreement. Terms defined in the Underwriting Agreement are used herein as
therein defined.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement, including a prospectus, relating
to the Debt Securities and has filed with, or transmitted for filing to, or
shall promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "Prospectus Supplement") specifically relating to
the Offered Securities pursuant to Rule 424 under the Securities Act of 1933,
as amended (the "Securities Act"). The term "Registration Statement" means
the registration statement, including the exhibits thereto, as amended to the
date of this Agreement. The term "Basic Prospectus" means the prospectus
included in the Registration Statement. The term "Prospectus" means the Basic
Prospectus together with the Prospectus Supplement. The term "preliminary
prospectus" means a preliminary prospectus supplement specifically relating to
the Offered Securities, together with the Basic Prospectus. As used herein,
the terms "Basic Prospectus," "Prospectus" and "preliminary prospectus" shall
include in each case the documents, if any, incorporated by reference therein.
The terms "supplement," "amendment" and "amend" as used herein shall include
all documents deemed to be incorporated by reference in the Prospectus that
are filed subsequent to the date of the Basic Prospectus by the Company with
the Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
1. Representations and Warranties. The Company represents and
warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act and
the applicable rules and regulations of the Commission thereunder, (ii) each
part of the Registration Statement, when such part became effective, did not
contain, and each such part, as amended or supplemented, if applicable, will
not contain any 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, (iii) the Registration Statement and the
Prospectus comply, and, as amended or supplemented, if applicable, will comply
in all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain any
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 representations and warranties
set forth in this Section 1(b) do not apply (A) to statements or omissions in
the Registration Statement or the Prospectus based upon information relating
to the underwriting arrangements furnished to the Company in writing by an
Underwriter through the Manager expressly for use therein or (B) to that part
of the Registration Statement that constitutes the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), of the Trustee.
(c) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and
to conduct its business as described in the Prospectus and is duly qualified
to transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company listed in Exhibit A (each a
"Subsidiary") has been duly incorporated, is validly existing as a corporation
in good standing under the laws of the jurisdiction of its incorporation, has
the corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(g) The Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters in accordance with the terms
of the Underwriting Agreement, will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the Company, enforceable
in accordance with their terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration, if any, and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture and the Offered Securities will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the Company
or any agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of its
obligations under this Agreement, the Indenture or the Offered Securities,
except such as may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the Offered Securities.
(i) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto subsequent to
the date of this Agreement).
(j) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations, contracts
or other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed or incorporated by reference as
exhibits to the Registration Statement that are not described, filed or
incorporated as required.
(k) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(l) The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
(m) The Company and its subsidiaries (i) are in compliance with
any and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(n) The Company has complied with all provisions of Section
517.075, Florida Statutes relating to doing business with the Government of
Cuba or with any person or affiliate located in Cuba.
2. Terms of Public Offering. The Company is advised by the
Manager that the Underwriters propose to make a public offering of their
respective portions of the Offered Securities as soon after this Agreement has
been entered into as in the Manager's judgment is advisable. The terms of the
public offering of the Offered Securities are set forth in the Prospectus.
3. Payment and Delivery. Except as otherwise provided in this
Section 3, payment for the Offered Securities shall be made in immediately
available funds to the Company at the time and place set forth in the
Underwriting Agreement, upon delivery to the Manager for the respective
accounts of the several Underwriters of the Offered Securities registered in
such names and in such denominations as the Manager shall request in writing
not less than two full business days prior to the date of delivery, with any
transfer taxes payable in connection with the transfer of the Offered
Securities to the Underwriters duly paid.
4. Conditions to the Underwriters' Obligations. The several
obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations
of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement)
that, in the judgment of the Manager, is material and adverse and
that makes it, in the judgment of the Manager, impracticable to
market the Offered Securities on the terms and in the manner
contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect that, to the best of his or her knowledge,
the events contemplated in clause (a)(i) above had not occurred and to
the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxxx X. Xxxxxxx, Assistant Secretary for the Company,
dated the Closing Date, to the effect that:
(i) the Company and each Subsidiary has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation,
has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership
or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(ii) this Agreement has been duly authorized by all
necessary corporate action of the Company;
(iii) the Indenture has been duly authorized by all
necessary corporate action of the Company;
(iv) the Offered Securities have been duly authorized by
all necessary corporate action of the Company;
(v) the issuance and sale of the Offered Securities to the
Underwriters pursuant to this Agreement, the Indenture and the
Offered Securities (a) do not require any consent, approval,
authorization, registration or qualification of or with any
governmental authority of the State of Arkansas (except as to any
consent, approval, authorization, registration or qualification
that may be required under Arkansas securities or Blue Sky laws)
and (b) do not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, any of the
agreements of the Company identified in Exhibit B hereto, the
Certificate of Incorporation or By-Laws of the Company, or any
judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any Subsidiary;
(vi) the statements set forth (A) in Part II of the
Registration Statement under Item 15, (B) in "Item 3 - Legal
Proceedings" of the Company's most recent annual report on Form
10-K incorporated by reference in the Prospectus and (C) in "Item
1 - Legal Proceedings" and "Item 5" of Part II of the Company's
quarterly reports on Form 10-Q, if any, filed since such annual
report, in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred
to therein, fairly present the information called for with respect
to such legal matters, documents and proceedings and fairly
summarize the matters referred to therein; and
(vii) after due inquiry, such counsel does not know of any
legal or governmental proceedings pending or threatened to which
the Company or any of its subsidiaries is a party or to which any
of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration
Statement or the Prospectus and are not so described or of any
statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed or incorporated by reference as exhibits
to the Registration Statement that are not described, filed or
incorporated as required.
(d) The Underwriters shall have received on the Closing Date an
opinion of Cleary, Gottlieb, Xxxxx & Xxxxxxxx, outside counsel for the
Company, dated the Closing Date, to the effect that:
(i) this Agreement has been duly executed and delivered by
the Company under the law of the State of New York;
(ii) the Indenture has been duly executed and delivered by
the Company, duly qualified under the Trust Indenture Act and,
assuming due authorization thereof by the Company, is a valid,
binding and enforceable agreement of the Company;
(iii) the Offered Securities, when executed and authenticated
in accordance with the provisions of the Indenture and delivered
to and paid for by the Underwriters in accordance with the terms
of the Underwriting Agreement, and assuming due authorization
thereof by the Company, will be entitled to the benefits of the
Indenture and will be valid, binding and enforceable obligations
of the Company;
(iv) the issuance and sale of the Offered Securities to the
Underwriters pursuant to this Agreement, and the execution and
delivery by the Company of, and the performance by the Company of
its obligations under this Agreement, the Indenture and the
Offered Securities do not require any consent, approval,
authorization, registration or qualification of or with any
governmental authority of the United States or the State of New
York except such as have been obtained or effected under the
Securities Act and the Trust Indenture Act (provided that such
counsel need express no opinion as to any consent, approval,
authorization, registration or qualification that may be required
under state securities or Blue Sky laws);
(v) the statements set forth in the Prospectus under the
captions "Description of Debt Securities", insofar as such
statements purport to summarize certain documents referred to
therein, fairly present the information called for with respect to
such documents and fairly summarize the matters referred to
therein; and
(vi) such counsel shall deliver a letter substantially to the
effect that (A) each document, if any, filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus
(except for financial statements and schedules included therein as
to which such counsel need not express any opinion) as of the
respective date of its filing, appeared on its face to be
appropriately responsive in all material respects to the
requirements of the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (B) no information has
come to such counsel's attention that has caused such counsel to
believe that (except for financial statements and schedules and
other financial and statistical data as to which such counsel need
not express any belief and except for that part of the
Registration Statement that constitutes the Form T-1 heretofore
referred to) each part of the Registration Statement, when such
part became effective, contained and, as of the date such opinion
is delivered, contains any untrue statement of a material fact or
omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, (C) the Registration Statement (except for financial
statements and schedules and other financial and statistical data
included therein as to which such counsel need not express any
opinion) at the time it became effective and the Prospectus
(except as aforesaid) as of the date such opinion is delivered,
appear on their face to be appropriately responsive in all
material respects with the requirements of the Securities Act and
the applicable rules and regulations of the Commission thereunder
and (D) no information has come to such counsel's attention that
has caused such counsel to believe that (except for financial
statements and schedules and other financial and statistical data
as to which such counsel need not express any belief) the
Prospectus as of the date such opinion is delivered contains any
untrue statement of a material fact 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.
(e) The Underwriters shall have received on the Closing Date an
opinion of Xxxxx Xxxx & Xxxxxxxx, special counsel for the Underwriters,
dated the Closing Date, covering the matters referred to in
subparagraphs (ii), (iii), (v) and clauses (B), (C) and (D) of
subparagraph (vi) of paragraph (d) above.
With respect to the subparagraph (vi) of paragraph (d)
above, Cleary, Gottlieb, Xxxxx & Xxxxxxxx and Xxxxx Xxxx & Xxxxxxxx may
state that their respective beliefs are based upon their participation
in the preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto (but not including documents
incorporated therein by reference) and review and discussion of the
contents thereof (including documents incorporated by reference), but
are without independent check or verification, except as specified.
The opinions of Xxxxxxx X. Xxxxxxx and Cleary, Gottlieb, Xxxxx &
Xxxxxxxx described in paragraphs (c) and (d) above shall be rendered to
the Underwriters at the request of the Company and shall so state
therein. All of the opinions described above, insofar as they relate to
the validity, binding effect or enforceability of any agreement or
obligation of the Company, may state that they are being rendered subject
to applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally and to equitable principles of general
applicability (whether considered in a proceeding equity or at law), and
Cleary, Gottlieb, Xxxxx & Xxxxxxxx and Xxxxx Xxxx & Xxxxxxxx may rely as
to matters governed by the laws of Arkansas on the opinion of Xxxxxxx X.
Xxxxxxx.
(f) The Underwriters shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory to
the Underwriters, from the Company's independent public accountants,
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Prospectus.
5. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with
each Underwriter as follows:
(a) To furnish the Manager, without charge, one signed copy of
the Registration Statement (including exhibits thereto) and for delivery
to each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and, during the period mentioned in paragraph
(c) below, as many copies of the Prospectus, any documents incorporated
by reference therein and any supplements and amendments thereto or to
the Registration Statement as the Manager may reasonably request.
(b) Before amending or supplementing the Registration Statement
or the Prospectus with respect to the Offered Securities, to furnish to
the Manager a copy of each such proposed amendment or supplement and not
to file any such proposed amendment or supplement to which the Manager
reasonably objects.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur
or condition exist as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement
the Prospectus to comply with applicable law, forthwith to prepare, file
with the Commission and furnish, at its own expense, to the Underwriters
and to the dealers (whose names and addresses the Manager will furnish
to the Company) to which Offered Securities may have been sold by the
Manager on behalf of the Underwriters and to any other dealers upon
request, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with law.
(d) To endeavor to qualify the Offered Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
Manager shall reasonably request and to maintain such qualification for
as long as the Manager shall reasonably request, provided that in
connection therewith the Company shall not be required to file a general
consent to service of process in any jurisdiction or qualify to do
business in any jurisdiction where it is not so qualified.
(e) To make generally available to the Company's security holders
and to the Manager as soon as practicable an earnings statement covering
a twelve month period beginning on the first day of the first full
fiscal quarter after the date of this Agreement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act and
the rules and regulations of the Commission thereunder. If such fiscal
quarter is the last fiscal quarter of the Company's fiscal year, such
earnings statement shall be made available not later than 120 days after
the close of the period covered thereby and in all other cases shall be
made available not later than 60 days after the close of the period
covered thereby.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to
offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company or warrants to purchase debt securities of the
Company substantially similar to the Offered Securities (other than (i)
the Offered Securities and (ii) commercial paper issued in the ordinary
course of business), without the prior written consent of the Manager.
(g) To pay all expenses incident to the performance of its
obligations under this Agreement, including: (i) the preparation and
filing of the Registration Statement and the Prospectus and all
amendments and supplements thereto; (ii) the preparation, issuance and
delivery of the Offered Securities; (iii) the fees and disbursements of
the Company's counsel and accountants and of the Trustee and its
counsel; (iv) the qualification of the Offered Securities under state
securities or Blue Sky laws in accordance with the provisions of Section
5(d), including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection
with the preparation of any Blue Sky or Legal Investment Memoranda; (v)
the printing and delivery to the Underwriters in quantities as
hereinabove stated of copies of the Registration Statement and all
amendments thereto and of any preliminary prospectus and the Prospectus
and any amendments or supplements thereto; (vi) the printing and
delivery to the Underwriters of copies of any Blue Sky or Legal
Investment Memoranda; (vii) any fees charged by rating agencies for the
rating of the Offered Securities; (viii) the filing fees and expenses,
if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc. made in connection with the
Offered Securities and (ix) any expenses incurred by the Company in
connection with a "road show" presentation to potential investors.
6. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by any Underwriter or any such
controlling person in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to the
underwriting arrangements furnished to the Company in writing by such
Underwriter through the Manager expressly for use therein, provided, however,
that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of an Underwriter or to the benefit
of any person controlling such Underwriter if the person asserting any such
losses, claims, damages or liabilities purchased Offered Securities from such
Underwriter and a copy of the Prospectus (as then amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) was
not sent or given by such Underwriter or on such Underwriter's behalf to such
person, if required by law to have been so delivered, at or prior to the
written confirmation of the sale of any Offered Securities to such person, and
if the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such loss, claim, damage or liability.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the
Company to such Underwriter, but only with reference to information relating
to the underwriting arrangements furnished to the Company in writing by such
Underwriter through the Manager expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) of this
Section 6, such person (the "indemnified party") shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying
party shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all such indemnified parties and
that all such fees and expenses shall be reimbursed as they are incurred.
Such firm shall be designated in writing by the Manager, in the case of
parties indemnified pursuant to paragraph (a) above, and by the Company, in
the case of parties indemnified pursuant to paragraph (b) above. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of
any proceeding effected without its written consent if (i) such settlement is
entered into more than 60 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of
such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph
(a) or (b) of this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Offered Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Offered Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of such Offered Securities (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus Supplement, bear to the aggregate public offering
price of the Offered Securities. The relative fault of the Company on the one
hand and the Underwriters on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 6 are several in proportion
to the respective principal amounts of Offered Securities they have purchased
hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 6 were determined
by pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) of this
Section 6. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 6, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages that such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
remedies provided for in this Section 6 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 6 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Company, its officers or directors
or any person controlling the Company and (iii) acceptance of and payment for
any of the Offered Securities.
7. Termination. This Agreement shall be subject to termination
by notice given by the Manager to the Company, if (a) after the execution and
delivery of the Underwriting Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by, as
the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago
Board of Trade, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Manager, is material and adverse and (b) in the case of any of the events
specified in clauses (a)(i) through (iv), such event, singly or together with
any other such event, makes it, in the judgment of the Manager, impracticable
to market the Offered Securities on the terms and in the manner contemplated
in the Prospectus.
8. Defaulting Underwriters. If, on the Closing Date, any one or
more of the Underwriters shall fail or refuse to purchase Offered Securities
that it has or they have agreed to purchase hereunder on such date, and the
aggregate amount of Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate amount of the Offered Securities to be purchased on
such date, the other Underwriters shall be obligated severally in the
proportions that the amount of Offered Securities set forth opposite their
respective names in the Underwriting Agreement bears to the aggregate amount
of Offered Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Manager may specify, to
purchase the Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the amount of Offered Securities that any Underwriter
has agreed to purchase pursuant to this Agreement be increased pursuant to
this Section 8 by an amount in excess of one-ninth of such amount of Offered
Securities without the written consent of such Underwriter. If, on the
Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase
Offered Securities and the aggregate amount of Offered Securities with respect
to which such default occurs is more than one-tenth of the aggregate amount of
Offered Securities to be purchased on such date, and arrangements satisfactory
to the Manager and the Company for the purchase of such Offered Securities are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either the Manager or the Company shall have the
right to postpone the Closing Date, but in no event for longer than seven
days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may
be effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement,
or if for any reason the Company shall be unable to perform its obligations
under this Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering contemplated hereunder.
9. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
10. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
11. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
UNDERWRITING AGREEMENT
___________, 199_
Southwestern Energy Company
0000 Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
Southwestern Energy Company, an Arkansas corporation (the "Company"), proposes
to issue and sell [Currency and Principal Amount] aggregate initial offering
price of [Full title of Debt Securities] (the "Debt Securities"). (The Debt
Securities are also referred to herein as the "Offered Securities.") The Debt
Securities will be issued pursuant to the provisions of an Indenture dated as
of _______________, 1995 (the "Indenture") between the Company and The First
National Bank of Chicago, as Trustee (the "Trustee").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell to the several
Underwriters, and each Underwriter agrees, severally and not jointly, to
purchase from the Company the respective principal amounts of Debt Securities
set forth below opposite their names at a purchase price of ____% of the
principal amount of Debt Securities [, plus accrued interest, if any, from
[Date of Offered Securities] to the date of payment and delivery]:
Principal Amount of
Name Debt Securities
Xxxxxx Xxxxxxx & Co.
Incorporated
[Insert syndicate list]
Total . . . . . .
The Underwriters will pay for the Offered Securities upon delivery
thereof at [office] at ______ a.m. (New York time) on ___________, 199_, or at
such other time, not later than 5:00 p.m. (New York time) on __________, 199_,
as shall be designated by the Manager. The time and date of such payment and
delivery are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the
Prospectus dated November __, 1995, and the Prospectus Supplement dated
____________, 199_, including the following:
Terms of Debt Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: ____________ __ and
____________ __ commencing
____________ __, ____
[(Interest accrues from
____________ __, ____)]
Form and Denomination:
[Other Terms:]
All provisions contained in the document entitled Southwestern
Energy Company Underwriting Agreement Standard Provisions (Debt Securities)
dated November __, 1995, a copy of which is attached hereto, are herein
incorporated by reference in their entirety and shall be deemed to be a part
of this Agreement to the same extent as if such provisions had been set forth
in full herein, except that (i) if any term defined in such document is
otherwise defined herein, the definition set forth herein shall control, (ii)
all references in such document to a type of security that is not an Offered
Security shall not be deemed to be a part of this Agreement and (iii) all
references in such document to a type of agreement that has not been entered
into in connection with the transactions contemplated hereby shall not be
deemed to be a part of this Agreement.
Please confirm your agreement by having an authorized officer sign
a copy of this Agreement in the space set forth below.
Very truly yours,
XXXXXX XXXXXXX & CO. INCORPORATED
Acting severally on behalf of itself
and the several Underwriters named herein
By: _____________________________
Name:
Title:
Accepted:
SOUTHWESTERN ENERGY COMPANY
By: ___________________________
Name:
Title:
