[DRAFT OF SEPTEMBER 3, 1999]
[INSERT NUMBER OF SHARES]
XXXXXXXXXXXX.XXX INC.
COMMON STOCK
UNDERWRITING AGREEMENT
[ ] , 1999
U.S. Bancorp Xxxxx Xxxxxxx Inc.
Credit Suisse First Boston Corporation
As Representatives of the Several Underwriters,
c/o U.S. Bancorp Xxxxx Xxxxxxx Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Dear Sirs:
1. Introductory. XxxxXxxxxxxx.Xxx Inc., a Delaware corporation
("COMPANY"), proposes to issue and sell to the Underwriters named in Schedule A
hereto ("UNDERWRITERS") ________ shares of its Common Stock, par value $0.01 per
share ("SECURITIES"), and MidAmerican Energy Holdings Company ("SELLING
STOCKHOLDER") proposes to sell to the Underwriters ________ outstanding shares
of the Securities (such shares of Securities being hereinafter referred to as
the "FIRM SECURITIES"). The Company also proposes to sell to the Underwriters,
at the option of the Underwriters, an aggregate of not more than ________
additional shares of its Securities and the Selling Stockholder also proposes to
sell to the Underwriters, at the option of the Underwriters, an aggregate of not
more than ________ additional outstanding shares of the Company's Securities, as
set forth below (such ________ additional shares being hereinafter referred to
as the "OPTIONAL SECURITIES"). The Firm Securities and the Optional Securities
are herein collectively called the "OFFERED SECURITIES". As part of the offering
contemplated by this Agreement, U.S. Bancorp Xxxxx Xxxxxxx (the "Designated
Underwriter") has agreed to reserve out of the Firm Securities purchased by it
under this Agreement, up to ________ shares, for sale to the Company's
directors, officers, employees and sales associates (collectively,
"Participants"), as set forth in the Prospectus (as defined herein) under the
heading "Underwriters" (the "Directed Share Program"). The Firm Securities to be
sold by the Designated Underwriter pursuant to the Directed Share Program (the
"Directed Shares") will be sold by the Designated Underwriter pursuant to this
Agreement at the public offering price. Any Directed Shares not orally confirmed
for purchase by a Participant by the end of the business day on which this
Agreement is executed will be offered to the public by the Underwriters as set
forth in the Prospectus. The Company and the Selling Stockholder hereby agree
with the several Underwriters as follows:
2. Representations and Warranties of the Company and the Selling
Stockholder. (a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement on Form S-1 (No. 333-82997)
relating to the Offered Securities, including a form of prospectus,
has been filed with the Securities and Exchange Commission
("COMMISSION") and either (A) has been declared effective under the
Securities Act of 1933 ("ACT") and is not proposed to be amended or
(B) is proposed to be amended by amendment or post-effective
amendment. If such registration statement (the "INITIAL REGISTRATION
STATEMENT") has been declared effective, either (A) an additional
registration statement (the "ADDITIONAL REGISTRATION STATEMENT")
relating to the Offered Securities may have been filed with the
Commission pursuant to Rule 462(b) ("RULE 462(b)") under the Act and,
if so filed, has become effective upon filing pursuant to such Rule
and the Offered Securities all have been duly registered under the Act
pursuant to the initial registration statement and, if applicable, the
additional registration statement, or (B) such an additional
registration statement is proposed to be filed with the Commission
pursuant to Rule 462(b) and will become effective upon filing pursuant
to such Rule and upon such filing the Offered Securities will all have
been duly registered under the Act pursuant to the initial
registration statement and such additional registration statement. If
the Company does not propose to amend the initial registration
statement or if an additional registration statement has been filed
and the Company does not propose to amend it, and if any
post-effective amendment to either such registration statement has
been filed with the Commission prior to the execution and delivery of
this Agreement, the most recent amendment (if any) to each such
registration statement has been declared effective by the Commission
or has become effective upon filing pursuant to Rule 462(c) ("RULE
462(c)") under the Act or, in the case of the additional registration
statement, Rule 462(b). For purposes of this Agreement, "EFFECTIVE
TIME" with respect to the initial registration statement or, if filed
prior to the execution and delivery of this Agreement, the additional
registration statement, means (A) if the Company has advised the
Representatives that it does not propose to amend such registration
statement, the date and time as of which such registration statement,
or the most recent post-effective amendment thereto (if any) filed
prior to the execution and delivery of this Agreement, was declared
effective by the Commission or has become effective upon filing
pursuant to Rule 462(c), or (B) if the Company has advised the
Representatives that it proposes to file an amendment or
post-effective amendment to such registration statement, the date and
time as of which such registration statement, as amended by such
amendment or post-effective amendment, as the case may be, is declared
effective by the Commission. If an additional registration statement
has not been filed prior to the execution and delivery of this
Agreement but the Company has advised the Representatives that it
proposes to file one, "EFFECTIVE TIME" with respect to such additional
registration statement means the date and time as of which such
registration statement is filed and becomes effective pursuant to Rule
462(b). "EFFECTIVE DATE" with respect to the initial registration
statement or the additional registration statement (if any) means the
date of the Effective Time thereof. The initial registration
statement, as amended at its Effective Time, including all information
contained in the additional registration statement (if any) and deemed
to be a part of the initial registration statement as of the Effective
Time of the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("RULE
430A(b)") under the Act, is hereinafter referred to as the "INITIAL
REGISTRATION STATEMENT". The additional registration statement, as
amended at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and including
all information (if any) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "ADDITIONAL REGISTRATION
STATEMENT". The Initial Registration Statement and the Additional
Registration are hereinafter referred to collectively as the
"REGISTRATION STATEMENTS" and individually as a "REGISTRATION
STATEMENT". The form of prospectus relating to the Offered Securities,
as first filed with the Commission pursuant to and in accordance with
Rule 424(b) ("RULE 424(b)") under the
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Act or (if no such filing is required) as included in a Registration
Statement, is hereinafter referred to as the "PROSPECTUS". No document
has been or will be prepared or distributed in reliance on Rule 434
under the Act.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement:
(A) on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all material respects to
the requirements of the Act and the rules and regulations of the
Commission ("RULES AND REGULATIONS") and did not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, (B) on the Effective Date of the Additional
Registration Statement (if any), each Registration Statement conformed
or will conform, in all material respects to the requirements of the
Act and the Rules and Regulations and did not include, or will not
include, any untrue statement of a material fact and did not omit, or
will not omit, to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
and (C) on the date of this Agreement, the Initial Registration
Statement and, if the Effective Time of the Additional Registration
Statement is prior to the execution and delivery of this Agreement,
the Additional Registration Statement each conforms, and at the time
of filing of the Prospectus pursuant to Rule 424(b) or (if no such
filing is required) at the Effective Date of the Additional
Registration Statement in which the Prospectus is included, each
Registration Statement and the Prospectus will conform, in all
material respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents includes, or will include,
any untrue statement of a material fact or omits, or will omit, to
state any material fact required to be stated therein or necessary to
make the statements therein (with respect to the Prospectus, in the
light of the circumstances under which they were made) not misleading.
If the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement: on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement and the Prospectus will conform in all material
respects to the requirements of the Act and the Rules and Regulations,
neither of such documents will include any untrue statement of a
material fact or will omit to state any material fact required to be
stated therein or necessary to make the statements therein (with
respect to the Prospectus, in the light of the circumstances under
which they were made) not misleading, and no Additional Registration
Statement has been or will be filed. The two preceding sentences do
not apply to statements in or omissions from a Registration Statement
or the Prospectus based upon written information furnished to the
Company by or on behalf of any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the
only such information is that described as such in Section 7(c)
hereof.
(iii) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
and the Company is duly registered or qualified to do business as a
foreign corporation in good standing in each jurisdiction in which
such registration or qualification or good standing is required
(whether by reason of the ownership or leasing of property or the
conduct of business), except where the failure to so register or
qualify or be in good standing is not reasonably likely to have a
material adverse effect on the financial condition, business or
results of operation of the Company and the Subsidiaries (as defined
below) taken as a whole (a "MATERIAL ADVERSE EFFECT").
(iv) Each Subsidiary has been duly incorporated and is an
existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus;
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and each Subsidiary is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which such
registration or qualification or good standing is required (whether by
reason of the ownership or leasing of property or the conduct of
business), except where the failure to so register or qualify or be in
good standing is not reasonably likely to have a Material Adverse
Effect; all of the issued and outstanding capital stock of each
Subsidiary has been duly authorized and validly issued and is fully
paid and nonassessable; and the capital stock of each Subsidiary owned
by the Company, directly or through Subsidiaries, is owned free from
any material liens, encumbrances and security interests. For purposes
of this Agreement, the term "SUBSIDIARY" shall mean the entities
listed in Schedule B hereto ("SCHEDULE B"), which are all of the
material direct or indirect "SUBSIDIARIES" of the Company, as such
term is defined in Rule 405 of the Rules and Regulations, and are all
of the "SIGNIFICANT SUBSIDIARIES" of the Company, as such term is
defined in Rule 1-02 of Regulation S-X.
(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; all
outstanding shares of capital stock of the Company are, and, when the
Offered Securities have been delivered and paid for in accordance with
this Agreement on each Closing Date (as defined below) such Offered
Securities will have been, validly issued, fully paid and
nonassessable and will conform to the description thereof contained in
the Prospectus; and the stockholders of the Company have no preemptive
rights with respect to the Offered Securities which have not been
waived.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or
any Underwriter for a brokerage commission, finder's fee or other like
payment in connection with this offering of the Offered Securities.
(vii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings which have not been satisfied
or waived between the Company and any person granting such person the
right to require the Company to file a registration statement under
the Act with respect to any securities of the Company owned or to be
owned by such person or to require the Company to include such
securities in the securities registered pursuant to a Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act.
(viii) The Securities have been approved for listing subject
to notice of issuance on The Nasdaq Stock Market's National Market.
(ix) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
to be obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement in connection with the
sale of the Offered Securities, except such as have been obtained and
made under the Act and such as may be required by the National
Association of Securities Dealers, Inc. or under state securities or
Blue Sky laws in connection with the purchase and distribution of the
Offered Securities by the Underwriters.
(x) The execution, delivery and performance of this Agreement,
and the consummation of the transactions herein contemplated will not
result in a breach or violation of any of the terms and provisions of,
or constitute a default under (A) any statute, rule, regulation or
order of any governmental agency or body or any court, domestic or
foreign, having jurisdiction over the Company or any Subsidiary or any
of their properties, (B) any agreement or instrument to which
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the Company or any such Subsidiary is a party or by which the Company
or any such Subsidiary is bound or to which any of the properties of
the Company or any such Subsidiary is subject, or (C) the charter or
by-laws of the Company or any such Subsidiary where, in the case of
the foregoing clauses (A) and (B) only, any such breaches, defaults or
violations, individually or in the aggregate, is reasonably likely to
(i) have a Material Adverse Effect or (ii) impair the validity or
enforceability of the Offered Securities under the Act.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company.
(xii) Except as disclosed in the Prospectus, the Company and
its Subsidiaries have good and marketable title to all real properties
and all other properties and assets owned by them that are material to
the business of the Company and Subsidiaries taken as a whole, in each
case free from liens, encumbrances and defects that would materially
interfere with the use made or to be made thereof by them; and except
as disclosed in the Prospectus, the Company and its Subsidiaries hold
any leased real or personal property that is material to the business
of the Company and Subsidiaries taken as a whole, under valid and
enforceable leases , in each case free from liens, encumbrances and
defects that would materially interfere with the use made or to be
made thereof by them.
(xiii) The Company and its Subsidiaries possess all material
certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now
operated by them and have not received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit that, if determined adversely to the Company or
any of its Subsidiaries, would individually or in the aggregate be
reasonably likely to have a Material Adverse Effect.
(xiv) No labor dispute with the employees of the Company or
any Subsidiary exists or, to the knowledge of the Company, is
threatened that is reasonably likely to have a Material Adverse
Effect.
(xv) The Company and its Subsidiaries own, possess or can
acquire on reasonable terms, adequate, or have the right to use, all
trademarks, trade names and other rights to inventions, know-how,
patents, copyrights, confidential information and other intellectual
property (collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary to
conduct the business now operated by them, or presently employed by
them except where the failure to own, possess, use or otherwise be
able to acquire such intellectual property would not, singly or in the
aggregate, have a Material Adverse Effect; and neither the Company nor
its Subsidiaries have received any notice of infringement of or
conflict with asserted rights of others with respect to any
intellectual property rights that, if determined adversely to the
Company or any of its Subsidiaries, would individually or in the
aggregate be reasonably likely to have a Material Adverse Effect.
(xvi) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of
toxic wastes, hazardous wastes or hazardous substances, pollutants or
contaminates by the Company or any Subsidiary (or, to the knowledge of
the Company, any of their predecessors in interest) at, upon or from
any of the property now or previously owned or leased by the Company
or any Subsidiary in violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit or which would require
remedial action under any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any violation or
remedial action which does not have, or would not be reasonably likely
to have, individually or in the aggregate with all such violations and
remedial actions, a Material
5
Adverse Effect; there has been no off-site disposal or migration of
toxic waste, hazardous waste or hazardous substances, pollutants or
contaminants for which the Company or any Subsidiary is liable nor is
the Company or any Subsidiary subject to any claim relating to any
environmental laws which violation, liability or claim would
individually or in the aggregate be reasonably likely to have a
Material Adverse Effect; there has been no material spill, discharge,
leak, emission, injection, escape, dumping or release of any kind onto
the property now or previously owned or leased by the Company or any
Subsidiary or into the environment surrounding such property of any
toxic wastes, solid wastes, hazardous wastes or hazardous substances,
pollutants or contaminants due to or caused by the Company or any
Subsidiary or with respect to which the Company or any Subsidiary has
knowledge, except for any such spill, discharge, leak, emission,
injection, escape, dumping, or release which does not have, or would
not be reasonably likely to have, individually or in the aggregate
with all such spills, discharges, leaks, emissions, injections,
escapes, dumpings and releases, a Material Adverse Effect; neither the
Company nor any Subsidiary has knowledge of any pending or threatened
investigation which might lead to a violation, liability or claim
which would individually or in the aggregate be reasonably likely to
have a Material Adverse Effect; and the terms "HAZARDOUS WASTES",
"TOXIC WASTES" and "HAZARDOUS SUBSTANCES" shall have the meanings
specified in any applicable local, state, federal and foreign laws or
regulations with respect to environmental protection.
(xvii) Except as disclosed in the Prospectus, there are no
actions, suits or proceedings against or affecting the Company or any
Subsidiary or any of their respective properties or assets now pending
or, to the knowledge of the Company, threatened or contemplated (i) of
a character required to be disclosed in the Registration Statement
which are not adequately disclosed in the Registration Statement or
(ii) that, if determined adversely to the Company or any of its
Subsidiaries, would individually or in the aggregate be reasonably
likely to have a Material Adverse Effect, or would materially and
adversely affect the ability of the Company to perform its obligations
under this Agreement, or which are otherwise material in the context
of the sale of the Offered Securities.
(xviii) The financial statements included in each Registration
Statement and the Prospectus present fairly the financial position of
the Company and its consolidated Subsidiaries as of the dates shown
and their results of operations and cash flows for the periods shown,
and such financial statements have been prepared in conformity with
the generally accepted accounting principles in the United States
applied on a consistent basis throughout the periods therein
specified; the schedules included in each Registration Statement
present fairly the information required to be stated therein; and the
assumptions used in preparing the pro forma financial statements
included in each Registration Statement and the Prospectus are
reasonable and the related pro forma adjustments give appropriate
effect to those assumptions.
(xix) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus
there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the
financial condition, business, properties or results of operations of
the Company and its Subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the Prospectus, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(xx) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof by the Company as described in the Prospectus, will
not be an "investment company" as defined in the Investment Company
Act of 1940.
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(xxi) The use of the proceeds of the offering of the Offered
Securities as described in the Prospectus has been duly authorized by
all necessary action on the part of the Company.
(xxii) The Company has full power and authority to authorize,
issue and sell the Offered Securities as contemplated by this
Agreement.
(xxiii) Except as disclosed in or contemplated by the
Prospectus, the Company and its Subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as is customary for
similarly situated companies in the Company's and such Subsidiaries'
industries respectively. Each of the foregoing insurance policies is
valid and in full force and effect, and no event has occurred and is
continuing that permits, or after notice or lapse of time or both
would permit, modifications or terminations of the foregoing that,
individually or in the aggregate, is reasonably likely to have a
Material Adverse Effect.
(xxiv) The Company and its Subsidiaries are currently
conducting their respective businesses as described in the Prospectus.
(xxv) There is no relationship, direct or indirect, that
exists between or among the Company on the one hand, and the
directors, officers, stockholders, customers or suppliers of the
Company on the other hand, of a character required to be described in
the Registration Statement or Prospectus which is not described as
required under the Act.
(xxvi) The Registration Statement, the Prospectus and any
preliminary prospectus comply, and any further amendments or
supplements thereto will comply, with any applicable laws or
regulations of foreign jurisdictions in which the Prospectus or any
preliminary prospectus, as amended or supplemented, if applicable, are
distributed in connection with the Directed Share Program. No
authorization, approval, consent, license, order, registration or
qualification of or with any government, governmental instrumentality
or court, other than such as have been obtained, is necessary under
the securities law and regulations of foreign jurisdictions in which
the Directed Shares are offered outside the United States. The Company
has not offered, or caused the Underwriters to offer, any Offered
Securities to any person pursuant to the Directed Share Program with
the specific intent to unlawfully influence (i) a customer or supplier
of the Company to alter the customer's or supplier's level or type of
business with the Company or (ii) a trade journalist or publication to
write or publish favorable information about the Company or its
products.
(b) The Selling Stockholder represents and warrants to, and agrees
with, the several Underwriters that:
(i) The Selling Stockholder has and on each Closing Date
hereinafter mentioned will have valid and unencumbered title to the
Offered Securities to be delivered by the Selling Stockholder on such
Closing Date and full right, power and authority to enter into this
Agreement and to sell, assign, transfer and deliver the Offered
Securities to be delivered by the Selling Stockholder on such Closing
Date hereunder; and upon the delivery of and payment for the Offered
Securities on each Closing Date hereunder, the several Underwriters
will acquire valid and unencumbered title to the Offered Securities to
be delivered by the Selling Stockholder on such Closing Date.
(ii) The information in the Prospectus under the headings
"Summary" and "Principal and Selling Stockholder" which specifically
relates to the Selling Stockholder (the "Selling
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Stockholder Information") does not, and will not on each Closing Date,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
(iii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Selling
Stockholder and any person that would give rise to a valid claim
against the Selling Stockholder or any Underwriter for a brokerage
commission, finder's fee or other like payment in connection with this
offering of the Offered Securities.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company and the Selling
Stockholder agree, severally and not jointly, to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
and the Selling Stockholder, at a purchase price of $_____ per share, the number
of Firm Securities set forth below the caption "Company" or "Selling
Stockholder", as the case may be, and opposite the name of such Underwriter in
Schedule A hereto.
The Company and the Selling Stockholder will deliver the Firm
Securities to the Representatives for the accounts of the Underwriters, against
payment of the purchase price in Federal (same day) funds by official bank check
or checks or wire transfer to an account at a bank acceptable to U.S. Bancorp
Xxxxx Xxxxxxx Inc. drawn to the order of XxxxXxxxxxxx.Xxx Inc. in the case of
__________________________ Firm Securities and MidAmerican Energy Holdings
Company in the case of _____________________ Firm Securities, at the office of
Xxxxxxxxxx & Xxxxx LLP, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, at
10:00 A.M., New York time, on [__________], 1999, or at such other time not
later than seven full business days thereafter as U.S. Bancorp Xxxxx Xxxxxxx
Inc. and the Company determine, such time being herein referred to as the "FIRST
CLOSING DATE". For purposes of Rule 15c6-1 under the Securities Exchange Act of
1934, the First Closing Date (if later than the otherwise applicable settlement
date) shall be the settlement date for payment of funds and delivery of
securities for all the Offered Securities sold pursuant to the offering. The
certificates for the Firm Securities so to be delivered will be in definitive
form, in such denominations and registered in such names as U.S. Bancorp Xxxxx
Xxxxxxx Inc. requests and will be made available for checking and packaging at
the above office of Xxxxxxxxxx & Xxxxx LLP at least 24 hours prior to the First
Closing Date.
In addition, upon written notice from U.S. Bancorp Xxxxx Xxxxxxx Inc.
given to the Company and the Selling Stockholder from time to time not more than
30 days subsequent to the date of the Prospectus, the Underwriters may purchase
all or less than all of the Optional Securities at the purchase price per
Security to be paid for the Firm Securities. The Company and the Selling
Stockholder agree, severally and not jointly, to sell to the Underwriters the
respective numbers of Optional Securities obtained by multiplying the number of
shares specified in such notice by a fraction the numerator of which is
_________ in the case of the Company and ____________ in the case of the
Selling Stockholder and the denominator of which is the total number of
Optional Securities (subject to adjustment by U.S. Bancorp Xxxxx Xxxxxxx Inc.
to eliminate fractions). Such Optional Securities shall be purchased from the
Company and the Selling Stockholder for the account of each Underwriter in the
same proportion as the number of Firm Securities set forth opposite such
Underwriter's name bears to the total number of Firm Securities (subject to
adjustment by U.S. Bancorp Xxxxx Xxxxxxx Inc. to eliminate fractions) and may be
purchased by the Underwriters only for the purpose of covering over-allotments
made in connection with the sale of the Firm Securities. No Optional Securities
shall be sold or delivered unless the Firm Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to time and to the
extent not previously exercised may be
8
surrendered and terminated at any time upon notice by U.S. Bancorp Xxxxx Xxxxxxx
Inc. to the Company and the Selling Stockholder.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING Date", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by U.S.
Bancorp Xxxxx Xxxxxxx Inc. but shall be not later than seven full business days
after written notice of election to purchase Optional Securities is given. The
Company and the Selling Stockholder will deliver the Optional Securities being
purchased on each Optional Closing Date to the Representatives for the accounts
of the several Underwriters, against payment of the purchase price therefor in
Federal (same day) funds by official bank check or checks or wire transfer to an
account at a bank acceptable to U.S. Bancorp Xxxxx Xxxxxxx Inc. drawn to the
order of XxxxXxxxxxxx.Xxx Inc. in the case of Optional Securities sold by the
Company and MidAmerican Energy Holdings Company in the case of Optional
Securities sold by the Selling Stockholder, at the above office of Xxxxxxxxxx &
Xxxxx LLP. The certificates for the Optional Securities being purchased on each
Optional Closing Date will be in definitive form, in such denominations and
registered in such names as U.S. Bancorp Xxxxx Xxxxxxx Inc. requests upon
reasonable notice prior to such Optional Closing Date and will be made available
for checking and packaging at the above office of Xxxxxxxxxx & Xxxxx LLP at a
reasonable time in advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholder. The
Company and, to the extent set forth on the signature page hereto, the Selling
Stockholder, agree with the several Underwriters and each other that:
(a) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement,
the Company will file the Prospectus with the Commission pursuant to
and in accordance with subparagraph (1) (or, if applicable and if
consented to by U.S. Bancorp Xxxxx Xxxxxxx Inc., subparagraph (4)) of
Rule 424(b) not later than the second business day following the
execution and delivery of this Agreement.
The Company will advise U.S. Bancorp Xxxxx Xxxxxxx Inc.
promptly of any such filing pursuant to Rule 424(b). If the Effective
Time of the Initial Registration Statement is prior to the execution
and delivery of this Agreement and an additional registration
statement is necessary to register a portion of the Offered Securities
under the Act but the Effective Time thereof has not occurred as of
such execution and delivery, the Company will file the additional
registration statement or , if filed, will file a post-effective
amendment thereto with the Commission pursuant to and in accordance
with Rule 462 (b) on or prior to 10:00P.M., New York time, on the date
of this Agreement or, if earlier, on or prior to the time the
Prospectus is printed and distributed to any Underwriter, or will make
such filing at such later date as shall have been consented to by U.S.
Bancorp Xxxxx Xxxxxxx Inc.
(b) The Company will advise U.S. Bancorp Xxxxx Xxxxxxx Inc.
promptly of any proposal to amend or supplement the initial or any
additional registration statement as filed or the related prospectus
or the Initial Registration Statement, the Additional Registration
Statement (if any) or the Prospectus and will not effect such
amendment or supplementation without U.S. Bancorp Xxxxx Xxxxxxx Inc.'s
consent, which consent shall not be unreasonably withheld; and the
Company will also advise U.S. Bancorp Xxxxx Xxxxxxx Inc. promptly of
the effectiveness of each Registration Statement (if its Effective
Time is subsequent to the execution and delivery of this Agreement)
9
and of any amendment or supplementation of a Registration Statement or
the Prospectus and of the institution by the Commission of any stop
order proceedings in respect of a Registration Statement and will use
its reasonable best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required, in the opinion of counsel for the
Underwriters, to be delivered under the Act in connection with sales
by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company will promptly notify U.S. Bancorp Xxxxx Xxxxxxx Inc. of
such event and will promptly prepare and file with the Commission, at
its own expense, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such
compliance. Neither U.S. Bancorp Xxxxx Xxxxxxx Inc.'s consent to, nor
the Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than 16 months after
the date of this Agreement, the Company will make generally available
to its securityholders an earnings statement covering a period of at
least 12 months beginning after the Effective Date of the Initial
Registration Statement (or, if later, the Effective Date of the
Additional Registration Statement) which will satisfy the provisions
of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of
each Registration Statement (two of which will be signed and will
include all exhibits), each related preliminary prospectus, and, so
long as a prospectus relating to the Offered Securities is required to
be delivered under the Act in connection with sales by any Underwriter
or dealer, the Prospectus and all amendments and supplements to such
documents, in each case in such quantities as U.S. Bancorp Xxxxx
Xxxxxxx Inc. requests. Such documents shall be so furnished as soon as
available. The Prospectus shall be so furnished as soon as practicable
but no later than on or prior to 3:00 P.M., New York time, on the
second business day following the later of the execution and delivery
of this Agreement or the Effective Time of the Initial Registration
Statement. The Company will pay the expenses of printing and
distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions in
the United States as U.S. Bancorp Xxxxx Xxxxxxx Inc. designates and
will continue such qualifications in effect so long as required for
the distribution, provided that, in connection therewith the Company
shall not, with respect to any such jurisdiction, be required to
qualify as a foreign corporation, to file a general consent to service
of process or to take any other action that would subject it to
service of process in suits other than those arising out of the
offering of the Offered Securities or to taxation in respect of doing
business in any jurisdiction in which it is not otherwise subject.
(g) During the period of three years hereafter, the Company
will furnish to the Representatives and, upon request, to each of the
other Underwriters, as soon as practicable after the end of each
fiscal year, a copy of its annual report to stockholders for such
year; and the Company will furnish to the Representatives as soon as
available, a copy of each report and any
10
definitive proxy statement of the Company filed with the Commission
under the Securities Exchange Act of 1934 or mailed to stockholders.
(h) For a period of 180 days after the date of the initial
public offering of the Offered Securities, neither the Company nor any
of its directors or officers will offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, or file with
the Commission a registration statement under the Act relating to, any
shares of its Securities or securities convertible into or
exchangeable or exercisable for any shares of its Securities, or
representing the right to receive shares of the Securities, or
publicly disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of U.S.
Bancorp Xxxxx Xxxxxxx Inc., except (i) issuances of Securities
pursuant to the conversion or exchange of convertible or exchangeable
securities or the exercise of warrants or options, in each case
outstanding on the date hereof; (ii) grants of employee stock options
pursuant to the terms of a plan in effect on the date hereof, or
issuances of Securities pursuant to the exercise of such options;
(iii) sales of Securities pursuant to employee stock benefit plans in
effect on the date hereof, (iv) filing with the Commission a
registration statement relating to the Securities described in the
preceding clauses (i), (ii) and (iii); (v) pledges of Securities made
to secure debt issued by the Selling Stockholder in connection with
any future public or private financings; and (vi) any transfer of
Securities by a director or officer of the Company to a member of such
director's or officer's immediate family, to a trust of which such
director or officer or an immediate family member thereof is the
beneficiary, to the estate of such director or officer upon his death
or to any other person as a bona fide gift, provided, in the case of
(v) and (vi) above, that the acquiring entity, pledgee or transferee
agree in writing to be bound by the foregoing transfer limitations.
The Company shall, concurrently with the execution of this Agreement,
deliver to U.S. Bancorp Xxxxx Xxxxxxx Inc. an agreement in the form of
Exhibit A hereof executed by each of the directors and officers of the
Company pursuant to which each such person agrees not to offer, sell,
contract to sell, pledge, grant any option to purchase, or otherwise
dispose of any of the Company's Securities or any securities
convertible into or exercisable or exchangeable for such Securities
for a period of 180 days after the date of the initial public offering
of the Offered Securities.
(i) The Company agrees with the several Underwriters that the
Company will pay all expenses incident to the performance of the
obligations of the Company and the Selling Stockholder under this
Agreement, for any filing fees and other expenses (including
reasonable fees and disbursements of counsel) in connection with
qualification of the Offered Securities for sale under the laws of
such jurisdictions as U.S. Bancorp Xxxxx Xxxxxxx Inc. designates and
the printing of memoranda relating thereto for the filing fee incident
to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review by the National
Association of Securities Dealers, Inc. ("NASD") of the Offered
Securities, for any travel expenses of the Company's officers and
employees and any other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of the
Offered Securities, for any transfer taxes on the sale by the Selling
Stockholder of the Offered Securities to the Underwriters and for
expenses incurred in distributing preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto) to the
Underwriters.
(j) The Selling Stockholder agrees to deliver to U.S. Bancorp
Xxxxx Xxxxxxx Inc., attention: Investment Banking on or prior to the
First Closing Date a properly completed and executed United States
Treasury Department Form W9 (or other applicable form or statement
specified by Treasury Department regulations in lieu thereof).
11
(k) The Selling Stockholder agrees, for a period of 180 days
after the date of the initial public offering of the Offered
Securities, not to offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, any shares of the Securities or
securities convertible into or exchangeable or exercisable for any
shares of Securities, or representing the right to receive shares of
the Securities or publicly disclose the intention to make any such
offer, sale pledge or disposition, without the prior written consent
of U.S. Bancorp Xxxxx Xxxxxxx Inc. provided, however, that the Selling
Stockholder may (i) offer, sell, pledge or otherwise dispose of
Securities to any of its affiliates so long as the acquiring affiliate
agrees in writing to be bound by the foregoing transfer limitations
and (ii) pledge Securities to secure any existing or future debt
issued by the Selling Stockholder or any of its affiliates, provided
further, however, that the pledgee agrees in writing to be bound by
the foregoing transfer limitations.
(l) In connection with the Directed Share Program, the Company
will ensure that the Directed Shares will be restricted to the extent
required by the NASD or the NASD rules from sale, transfer,
assignment, pledge or hypothecation for a period of 180 days following
the date of the effectiveness of the Registration Statement. The
Designated Underwriter will notify the Company as to which
Participants will need to be so restricted. The Company will direct
the transfer agent to place stop transfer restrictions upon such
securities for such period of time.
(m) The Company will pay all fees and disbursements of counsel
incurred by the Underwriters in connection with the Directed Share
Program and stamp duties, similar taxes or duties or other taxes, if
any, incurred by the Underwriters in connection with the Directed
Share Program.
(n) The Company will comply with all applicable securities and
other applicable laws, rules and regulations in each foreign
jurisdiction in which the Directed Shares are offered in connection
with the Directed Share Program.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholder herein, to the
accuracy of the statements of Company officers made pursuant to the provisions
hereof, to the performance by the Company and the Selling Stockholder of their
obligations hereunder and to the following additional conditions precedent:
(a) The Representatives shall have received a letter, dated
the date of delivery thereof (which, if the Effective Time of the
Initial Registration Statement is prior to the execution and delivery
of this Agreement, shall be on or prior to the date of this Agreement
or, if the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement, shall be
prior to the filing of the amendment or post-effective amendment to
the registration statement to be filed shortly prior to such Effective
Time), from each of PricewaterhouseCoopers LLP, KPMG Peat Marwick LLP
and Deloitte & Touche LLP in a form previously agreed.
(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this
Agreement, such Effective Time shall have occurred not later than
10:00 P.M., New York time, on the date of this Agreement or such later
date as shall have been consented to by U.S. Bancorp Xxxxx Xxxxxxx
Inc. If the Effective Time of the Additional Registration Statement
(if any) is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 P.M., New
York time, on the date of this Agreement or, if earlier, the time the
Prospectus is printed and distributed to any Underwriter, or
12
shall have occurred at such later date as shall have been consented to
by U.S. Bancorp Xxxxx Xxxxxxx Inc. If the Effective Time of the
Initial Registration Statement is prior to the execution and delivery
of this Agreement, the Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and Section
5(a) of this Agreement. Prior to such Closing Date, no stop order
suspending the effectiveness of a Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Selling Stockholder, the
Company or the Representatives, shall be contemplated by the
Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the financial
condition, business or results of operations of the Company and its
Subsidiaries taken as one enterprise which, in the judgment of a
majority in interest of the Underwriters including the
Representatives, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Offered Securities; (ii) any downgrading
in the rating of any debt securities or preferred stock of the Company
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or
review its rating of any debt securities or preferred stock of the
Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of
such rating); (iii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or any setting of
minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Company on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by U.S.
Federal or New York authorities; or (v) any outbreak or escalation of
major hostilities in which the United States is involved, any
declaration of war by the United States Congress or any other
substantial national or international calamity or emergency if, in the
judgment of a majority in interest of the Underwriters including the
Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency on the financial markets makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities.
(d) The Representatives shall have received an opinion, dated
such Closing Date, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
counsel for the Company, to the effect that:
(i) the Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
State of its incorporation, with corporate power and authority
to own its properties and conduct its business as described in
the Prospectus;
(ii) the Offered Securities delivered on such Closing
Date when paid for in accordance with this Agreement have been
duly authorized and validly issued, are fully paid and
nonassessable and conform to the description thereof contained
in the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Offered Securities which
have not been waived;
(iii) the Company is not and, after giving effect to
the offering and sale of the Offered Securities and the
application of the proceeds thereof by the Company as
described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940;
13
(iv) under the Delaware General Corporation Law and
such laws of the State of New York and the laws of the United
States of America that in such counsel's experience are
normally applicable to transactions of the type contemplated
by this Agreement (except for state and foreign securities or
Blue Sky laws and the rules and regulations of the National
Association of Securities Dealers, Inc.) but without having
made any investigation regarding any other laws, no consent,
approval, authorization or order of, or filing with, any
governmental agency or body or any court is required to be
obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement;
(v) the execution and delivery by the Company of this
Agreement and the performance by the Company of its
obligations hereunder do not (i) conflict with the Certificate
of Incorporation or By-laws of the Company or (ii) constitute
a violation of or default under any Applicable Contracts (as
hereinafter defined). Such counsel need not express any
opinion, however, as to whether the execution, delivery or
performance by the Company of this Agreement will constitute a
violation of or a default under any covenant, restriction or
provision with respect to financial ratios or tests or any
aspect of the financial condition or results of operations of
the Company. "APPLICABLE CONTRACTS" mean those agreement or
instruments set forth on a schedule to such opinion which have
been identified to such counsel by the Company as all the
agreements and instruments which are material to the business
or financial condition of the Company (including all contracts
filed as exhibits to the Registration Statement);
(vi) neither the execution, delivery or performance
by the Company of its obligations under this Agreement nor
compliance by the Company with the terms hereof will
contravene any statute, rule, regulation or order of any
federal or New York governmental agency or body or any federal
or New York court having jurisdiction over the Company or any
Subsidiary or any of their properties, which orders have been
identified to such counsel by the Company and set forth on a
schedule to such opinion;
(vii) Such counsel has been orally advised by the
Commission that the Initial Registration Statement was
declared effective under the Act as of the date and time
specified in such opinion, the Additional Registration
Statement, if any, was filed and became effective under the
Act as of the date and time (if determinable) specified in
such opinion, the Prospectus either was filed with the
Commission pursuant to the subparagraph of Rule 424(b)
specified in such opinion on the date specified therein or was
included in the Initial Registration Statement or the
Additional Registration Statement (as the case may be), and
such counsel was orally advised by the Commission that no stop
order suspending the effectiveness of a Registration Statement
or any part thereof has been issued and no proceedings for
that purpose have been instituted or are pending or
contemplated under the Act, and each Registration Statement
and the Prospectus, and each amendment or supplement thereto,
as of their respective effective or issue dates, complied as
to form in all material respects with the requirements of the
Act and the Rules and Regulations, except that, in each case,
such counsel does not express an opinion as to the financial
statements, schedules and other financial and statistical data
included therein or excluded therefrom or the exhibits
thereto, and, such counsel does not assume any responsibility
for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus;
such counsel has no reason to believe that the Registration
Statement or any amendment thereto, as of its effective date,
or as of the Closing Date, contained any untrue statement of a
material fact or omitted to
14
state any material fact required to be stated therein or
necessary to make the statements therein not misleading; or
that the Prospectus or any amendment or supplement thereto,
as of its issue date or as of such Closing Date, contained
any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; except that, in each case, such
counsel does not express an opinion as to the financial
statements, schedules and other financial and statistical
data included therein or excluded therefrom or the exhibits
thereto;
(viii) based solely on such counsel's discussions
with the officers or other appropriate representatives of the
Company or any Subsidiary responsible for the matters
discussed herein and such counsel's review of documents
furnished to it by the Company or any Subsidiary and its
reliance on an officer's certificate and, without having made
any other inquiries or investigations or any search of the
public docket records of any court, governmental agency or
body or administrative agency, there is no action, suit or
proceeding before any court, governmental agency, body or
authority, domestic or foreign, now pending or, to such
counsel's knowledge. threatened, against the Company or any
Subsidiary that is required to be disclosed in the Prospectus
other than those disclosed in the Prospectus;
(ix) the Company has all requisite corporate power
and authority to enter into this Agreement, to issue the
Offered Securities and to consummate the transactions
contemplated by this Agreement;
(x) to such counsel's knowledge, there are no
contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the
Registration Statement by the Act or by the Rules and
Regulations which have not been described or filed as exhibits
to the Registration Statement;
(xi) this Agreement has been duly authorized,
executed and delivered by the Company;
(xii) assuming that U.S. Bancorp Xxxxx Xxxxxxx does
not have notice of any adverse claims with respect to
certificate number ___ registered in the name of the Selling
Stockholder and evidencing _________ shares of the Offered
Securities of the Company (the "Purchased Shares") then, upon
delivery to U.S. Bancorp Xxxxx Xxxxxxx in the State of New
York, such certificate indorsed to U.S. Bancorp Xxxxx Xxxxxxx
or indorsed in blank, U.S. Bancorp Xxxxx Xxxxxxx will acquire
such certificate (and the shares represented thereby) free of
any adverse claims (under Section 8-305 of the Uniform
Commercial Code as in effect on the Closing Date in the State
of New York); and
(xiii) the merger of MidAmerican Realty Services
Company, an Iowa corporation, with and into the Company has
been consummated as described in the Prospectus.
(e) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxxxx X. XxXxxxxx, in his capacity as Senior
Vice President and General Counsel for the Company and the Selling
Stockholder, to the effect that:
15
(i) each of the Company and its Subsidiaries has been
duly incorporated and is an existing corporation in good
standing under the laws of the State of its incorporation,
with corporate power and authority to own its properties and
conduct its business as described in the Prospectus; and each
of the Company and its Subsidiaries is duly qualified to do
business as a foreign corporation in good standing in each
jurisdiction in which such registration or qualification or
good standing is required (whether by reason of the ownership
or leasing of property, the conduct of business or otherwise),
except where the failure to so qualify or be in good standing
is not reasonably likely to have a Material Adverse Effect;
(ii) to such counsel's knowledge and except as
disclosed in the prospectus, there are no contracts,
agreements or understandings which have not been satisfied or
waived between the Company and any person granting such person
the right to require the Company to file a registration
statement under the Act with respect to any securities of the
Company owned or to be owned by such person or to require the
Company to include such securities in the securities
registered pursuant to the Registration Statement;
(iii) under the Delaware General Corporation Law and
such laws of the State of New York and the laws of the United
States of America that in such counsel's experience are
normally applicable to transactions of the type contemplated
by this Agreement (except for state and foreign securities or
Blue Sky laws and the rules and regulations of the National
Association of Securities Dealers, Inc.) but without having
made any investigation regarding any other laws, no consent,
approval, authorization or order of, or filing with, any
governmental agency or body or any court is required to be
obtained or made by the Selling Stockholder for the
consummation of the transactions contemplated by this
Agreement in connection with the sale of the Offered
Securities sold by the Selling Stockholder;
(iv) such counsel has no reason to believe that the
Registration Statement, or any amendment thereto, as of its
effective date contained any untrue statement of a material
fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein
not misleading; or that the Prospectus or any amendment or
supplement thereto, as of its date or as of such Closing
Date, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made, not misleading; except that, in
each case, such counsel does not express an opinion as to the
financial statements, schedules and other financial and
statistical data included therein or excluded therefrom or
the exhibits thereto;
(v) all outstanding shares of capital stock of the
Company have been duly authorized and validly issued, are
fully paid and non-assessable and conform to the description
thereof contained in the Prospectus; and the stockholders of
the Company have no preemptive rights with respect to such
capital stock which have not been waived;
(vi) to the best knowledge of such counsel, all the
outstanding shares of capital stock of each Subsidiary have
been duly and validly authorized and issued and are fully paid
and non-assessable; and to the best knowledge of such counsel,
except as disclosed in or contemplated by the Prospectus, all
outstanding shares of capital stock of each such Subsidiary
are owned beneficially by the Company free and clear of any
material claims, liens, encumbrances and security interests;
16
(vii) except as disclosed in or contemplated by the
Prospectus, each of the Company and its Subsidiaries has good
and marketable title to, or valid and enforceable leasehold or
contractual interests in, all real properties and all other
properties and assets owned or leased by each of them that are
material to the business of the Company and its Subsidiaries
taken as a whole, in each case free from all liens,
encumbrances, and defects that would materially interfere with
the use made or to be made thereof by them;
(viii) to such counsel's knowledge, there is no legal
or governmental action, suit or proceeding before any court,
governmental agency, body or authority, domestic or foreign,
now pending, threatened against, or involving, the Company or
any Subsidiary (i) of a character required to be disclosed in
the Prospectus which is not adequately disclosed in the
Prospectus or (ii) that, if determined adversely to the
Company or any Subsidiary, is reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect;
(ix) to such counsel's knowledge, the Company and
each Subsidiary (i) has obtained each license, permit,
certificate, franchise or other governmental authorization
which is material to the ownership of their properties or to
the conduct of their businesses as described in the Prospectus
and (ii) is in compliance with all terms and conditions of
such license, permit, certificate, franchise or other
governmental authorization, except in either case where the
failure to do so is not reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect;
(x) to such counsel's knowledge, there are no
contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the
Registration Statement by the Act or by the Rules and
Regulations which have not been described or filed as exhibits
to the Registration Statement;
(xi) the execution, delivery and performance of this
Agreement and the consummation of the transactions herein
contemplated will not, to the best of such counsel's
knowledge, (i) result in a breach or violation of any of the
terms and provisions of, or constitute a default under (A) any
statute, any rule, regulation or order of any governmental
agency or body or any court having jurisdiction over the
Selling Stockholder or any of its properties or (B) any
agreement or instrument to which the Selling Stockholder is a
party or by which the Selling Stockholder is bound or to which
any of the properties of the Selling Stockholder is subject or
(ii) conflict with the charter or by-laws of the Selling
Stockholder where, in the case of the foregoing clause (i)
only, any such breaches, defaults or violations, individually
or in the aggregate, is reasonably likely to (1) have a
material adverse effect on the financial condition, business
or results of operation of the Selling stockholder and its
subsidiaries taken as a whole or (2) impair the validity or
enforceability of the Offered Securities under the Act; and
(xii) this Agreement has been duly authorized,
executed and delivered by the Selling Stockholder.
(f) The Representatives shall have received from Xxxxxxxxxx &
Xxxxx LLP, counsel for the Underwriters, such opinion or opinions,
dated such Closing Date, with respect to the incorporation of the
Company, the validity of the Offered Securities delivered on such
Closing Date, the Registration Statements, the Prospectus and other
related matters as the Representatives
17
may require, and the Selling Stockholder and the Company shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(g) The Representatives shall have received a certificate,
dated such Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that: the representations and warranties of
the Company in this Agreement are true and correct; the Company has
complied with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder at or prior to such Closing
Date; no stop order suspending the effectiveness of any Registration
Statement has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission; the Additional
Registration Statement (if any) satisfying the requirements of
subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule
462(b), including payment of the applicable filing fee in accordance
with Rule 111(a) or (b) under the Act, prior to the time the
Prospectus was printed and distributed to any Underwriter; and,
subsequent to the respective dates of the most recent financial
statements in the Prospectus, there has been no material adverse
change, nor any development or event involving a prospective material
adverse change, in the financial condition, business or results of
operations of the Company and its Subsidiaries taken as a whole except
as set forth in or contemplated by the Prospectus or as described in
such certificate.
(h) The Representatives shall have received a letter, dated
such Closing Date, of PricewaterhouseCoopers LLP, KPMG Peat Marwick
LLP and Deloitte & Touche LLP which meets the requirements of
subsection (a) of this Section, except that the specified date
referred to in such subsection will be a date not more than three days
prior to such Closing Date for the purposes of this subsection.
(i) The merger of MidAmerican Realty Services Company, an Iowa
corporation, with and into the Company shall have been consummated in
the manner described in the Prospectus.
The Selling Stockholder and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. U.S. Bancorp Xxxxx Xxxxxxx Inc. may in
its sole discretion waive on behalf of the Underwriters compliance with any
conditions to the obligations of the Underwriters hereunder, whether in respect
of an Optional Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any who controls such Underwriter within the meaning of Section 15 of
the Act, against any losses, claims, damages or liabilities, joint or several,
to which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein (with respect to the Prospectus, in light of the
circumstances under which they were made) not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability or action arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with
18
written information furnished to the Company by or on behalf of any Underwriter
through the Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by any Underwriter consists
of the information described as such in subsection (c) below; and provided,
further, that with respect to any untrue statement or alleged untrue statement
in or omission or alleged omission from the preliminary prospectus dated
_______, the indemnity agreement contained in this subsection shall not inure to
the benefit of any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased the Offered Securities concerned, to
the extent that a prospectus relating to such Offered Securities was required to
be delivered by such Underwriter under the Act in connection with such purchase
and any such loss, claim, damage or liability of such Underwriter results from
the fact that there was not sent or given to such person, at or prior to the
written confirmation of the sale of such Offered Securities to such person, a
copy of the Prospectus if the Company had previously furnished copies thereof to
such Underwriter.
The Company agrees to indemnify and hold harmless the Designated
Underwriter and each person, if any, who controls the Designated Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act (the "Designated Entities"), from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (i) caused by any untrue statement or
alleged untrue statement of a material fact contained in any material prepared
by or with the consent of the Company for distribution to Participants in
connection with the Directed Share Program 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; (ii) caused by the
failure of any Participant to pay for and accept delivery of Directed Shares
that the Participant agreed to purchase; or (iii) related to, arising out of, or
in connection with the Directed Share Program, other than losses, claims,
damages or liabilities (or expenses relating thereto) that are finally
judicially determined to have resulted from the bad faith or gross negligence of
the Designated Entities.
(b) The Selling Stockholder will indemnify and hold harmless each
Underwriter, its partners, directors and officers and each person who controls
such Underwriter within the meaning of Section 15 of the Act, against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact regarding the Selling Stockholder contained in any Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the omission
or alleged omission to state therein a material fact regarding the Selling
Stockholder required to be stated therein or necessary to make the statements
therein (with respect to the Prospectus, in the light of the circumstances under
which they were made) not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any preliminary prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement thereto with
respect to the Selling Stockholder Information; and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Selling Stockholder will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by an Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below; provided, further,
however, that with respect to any untrue statement or alleged untrue statement
in or omission or alleged omission from the preliminary prospectus dated
_______, the indemnity agreement
19
contained in this subsection shall not inure to the benefit of any Underwriter
from whom the person asserting any such losses, claims, damages or liabilities
purchased the Offered Securities concerned, to the extent that a prospectus
relating to such Offered Securities was required to be delivered by such
Underwriter under the Act in connection with such purchase and any such loss,
claim, damage or liability of such Underwriter results from the fact that there
was not sent to given to such person, at or prior to the written confirmation of
the sale of such Offered Securities to such person, a copy of the Prospectus if
the Company had previously furnished copies thereof to such Underwriter.
Notwithstanding anything in this Agreement to the contrary, the liability of the
Selling Stockholder pursuant to this subsection shall not exceed the product of
(a) the number of Offered Securities sold by the Selling Stockholder and (b) the
difference between the per share public offering price and per share
underwriting discount of the Offered Securities sold by the Selling Stockholder
as set forth on the cover page to the Prospectus.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless (i) the Company, its directors and officers and each person, if any,
who controls the Company within the meaning of Section 15 of the Act, and (ii)
the Selling Stockholder , its directors and officers and each person, if any,
who controls the Selling Stockholder within the meaning of Section 15 of the
Act, in each case against any losses, claims, damages or liabilities to which
the Company or the Selling Stockholder may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein (with respect to the Prospectus, in
the light of the circumstances, under which they were made) not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of such Underwriter through the Representatives specifically for use
therein, and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company and the Selling Stockholder in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed that the
only such information furnished by any Underwriter consists of the following
information in the Prospectus furnished on behalf of each Underwriter: the
concession and re-allowance figures appearing in the second and seventh
paragraphs under the caption "Underwriting".
Notwithstanding anything contained herein to the contrary, if
indemnity may be sought pursuant to the last paragraph in Section 7(a) hereof in
respect of such action or proceeding, then in addition to such separate firm for
the indemnified parties, the indemnifying party shall be liable for the
reasonable fees and expenses of not more than one separate firm (in addition to
any local counsel) for the Designated Underwriter for the defense of any losses,
claims, damages and liabilities arising out of the Directed Share Program, and
all persons, if any, who control the Designated Underwriter within the meaning
of either Section 15 of the Act or Section 20 of the Exchange Act.
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a), (b) or (c) above, except to the extent it
has been materially prejudiced by such failure. In case any such action is
brought against any indemnified party and it notifies an indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
20
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party
under this Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that the indemnified party shall have
the right to employ counsel to represent the indemnified party and its
controlling persons who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the indemnified party against the
indemnifying party under this Section 7 if the employment of such counsel shall
have been authorized in writing by the indemnifying party in connection with the
defense of such action or, if in the written opinion of counsel to either the
indemnifying party or the indemnified party, representation of both parties by
the same counsel would be inappropriate due to actual or likely conflicts of
interest between them, and in that event the fees and expenses of one firm of
separate counsel (in addition to the fees and expenses of local counsel) shall
be paid by the indemnifying party. No indemnifying party shall, without the
prior written consent of the indemnified party, which consent shall not be
unreasonably withheld, effect any settlement of any pending or threatened action
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 any claims that are the subject matter of such action. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent.
(e) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholder on the one hand and the Underwriters on the
other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Selling Stockholder on the one hand and the Underwriters on the other hand in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholder on the one hand and the Underwriters on the other hand shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company and the Selling Stockholder
bear to the total underwriting discounts and commissions received by the
Underwriters; provided, however, that the liability of the Selling Stockholder
pursuant to this subsection shall not exceed the product of (a) the number of
Offered Securities sold by the Selling Stockholder and (b) the difference
between the per share public offering price and per share underwriting discounts
of the Offered Securities sold by the Selling Stockholder as set forth on the
cover page to the Prospectus. The 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 the Company, the Selling Stockholder or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (e) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (e). Notwithstanding the
provisions of this subsection (e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which 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
21
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (e) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Stockholder under
this Section 7 shall be in addition to any liability which the Company and the
Selling Stockholder may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company, to each officer of the Company who has signed a
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, U.S.
Bancorp Xxxxx Xxxxxxx Inc. may make arrangements satisfactory to the Company and
the Selling Stockholder for the purchase of such Offered Securities by other
persons, including any of the Underwriters, but if no such arrangements are made
by such Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the Offered Securities that such defaulting Underwriters agreed but failed to
purchase on such Closing Date. If any Underwriter or Underwriters so default and
the aggregate number of shares of Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date
and arrangements satisfactory to U.S. Bancorp Xxxxx Xxxxxxx Inc., the Company
and the Selling Stockholder for the purchase of such Offered Securities by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter, the
Company or the Selling Stockholder, except as provided in Section 9 (provided
that if such default occurs with respect to Optional Securities after the First
Closing Date, this Agreement will not terminate as to the Firm Securities or any
Optional Securities purchased prior to such termination). As used in this
Agreement, the term "UNDERWRITER" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholder, the Company or its officers and of the several Underwriters
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the Selling Stockholder, the Company or
any of their respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the Offered
Securities. If this Agreement is terminated pursuant to Section 8 or if for any
reason the purchase of the Offered Securities by the Underwriters is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5 and the respective obligations of the
Company, the Selling Stockholder and the Underwriters pursuant to Section 7
shall remain in effect and if any Offered Securities have been purchased
hereunder the representations and warranties in Section 2 and all obligations
under Section 5 shall also remain in effect. If the purchase of the Offered
Securities by the Underwriters is not consummated for any reason other than
solely because of the termination of this Agreement pursuant to Section 8 or the
occurrence of any event specified in clause (iii), (iv) or (v) of Section 6(c),
the Company will reimburse the Underwriters for all out-of-pocket expenses
(including fees
22
and disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities in excess of $250,000.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives, c/o Credit Suisse First Boston Corporation, Eleven
Madison Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking
Department - Transactions Advisory Group, or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it c/o XxxxXxxxxxxx.Xxx Inc.,
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxx, XX 00000, Attention: Xxxxxx X.
Xxxxxxx, President and CEO; or, if sent to the Selling Stockholder, will be
mailed, delivered or telegraphed and confirmed to MidAmerican Energy Holdings
Co., 000 Xxxxx 00xx Xxxxxx, Xxxxx 000, Xxxxx, XX 00000. Attention: Xxxxxx X.
XxXxxxxx, Senior Vice President provided, however, that any notice to an
Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed and
confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 and no other
person will have any right or obligation hereunder.
12. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
U.S. Bancorp Xxxxx Xxxxxxx Inc. will be binding upon all the Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
23
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Company, the Selling Stockholder but, in the case of the Selling Stockholder,
only with respect to the Selling Stockholder's several obligations under
Xxxxxxxx 0, 0(x), 0, 0, 0(x), 0(x), 0, 0(x), (x), (x), (x) and (f), 8, 9, 10,
11, 12, 13 and 14, and the several Underwriters in accordance with its terms.
Very truly yours,
XXXXXXXXXXXX.XXX INC.
By __________________________________________
Name:
Title:
MIDAMERICAN ENERGY HOLDINGS COMPANY
By __________________________________________
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
U.S. Bancorp Xxxxx Xxxxxxx Inc.
Credit Suisse First Boston Corporation
Acting on behalf of themselves
and as the Representatives of the
several Underwriters.
U.S. Bancorp Xxxxx Xxxxxxx Inc.
By _________________________________________
Name:
Title:
24
SCHEDULE A
NUMBER OF FIRM SECURITIES
TO BE SOLD BY
-------------------------
TOTAL NUMBER OF
UNDERWRITER SELLING FIRM SECURITIES TO
----------- COMPANY STOCKHOLDER BE PURCHASED
------- ----------- ------------------
U.S. Bancorp Xxxxx Xxxxxxx Inc.
Credit Suisse First Boston Corporation
--------- ---------- ---------------
TOTAL
========= ========== ===============
SCHEDULE B
26
EXHIBIT A
[Insert date]
U.S. Bancorp Xxxxx Xxxxxxx Inc.
Credit Suisse First Boston Corporation
As Representatives of the Several Underwriters,
c/o U.S. Bancorp Xxxxx Xxxxxxx Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
XxxxXxxxxxxx.Xxx Inc.
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, President and CEO
Dear Sirs:
As an inducement to the Underwriters to execute the
Underwriting Agreement, pursuant to which an offering will be made that is
intended to result in the establishment of a public market for shares of Common
Stock, par value $0.01 per share (the "Securities") of XxxxXxxxxxxx.Xxx Inc.
(the "Company"), the undersigned hereby agrees that, for a period of 180 days
after the initial public offering (the "Commencement Date") of the Securities
pursuant to the Underwriting Agreement to which you are or expect to become
parties, the undersigned will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, any shares of Securities or
securities convertible into or exchangeable or exercisable for any shares of
Securities, or publicly disclose the intention to make any such offer, sale,
pledge or disposal without the prior written consent of U.S. Bancorp Xxxxx
Xxxxxxx Inc., except any transfer to a member of the undersigned's immediate
family, to a trust of which the undersigned or an immediate family member of the
undersigned is the beneficiary, to the estate of the undersigned upon his or her
death or to any other person as a bona fide gift, provided, that the transferee
agree in writing to be bound by the foregoing transfer limitations.
In furtherance of the foregoing, the Company and its transfer
agent and registrar are hereby authorized to decline to make any transfer of
shares of Securities if such transfer would constitute a violation or breach of
this agreement.
This agreement shall be binding on the undersigned and the
respective successors, heirs, personal representatives and assigns of the
undersigned. This agreement shall lapse and become null and void if the
Commencement Date shall not have occurred on or before [insert date].
Very truly yours,
----------------------------------------
27
