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11,000,000 SHARES
K N ENERGY, INC.
COMMON STOCK
(PAR VALUE $5.00 PER SHARE)
UNDERWRITING AGREEMENT
March 4, 1998
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March 4, 1998
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & C ., Inc.
Xxxxx Xxxxxx Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. International Limited
Xxxxxxx Xxxxx International
Xxxxxx Xxxxxxx & Co., Inc.
Xxxxx Xxxxxx Inc.
x/x Xxxxxx Xxxxxxx & Xx. Xxxxxxxxxxxxx Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs and Mesdames:
K N Energy, Inc., a Kansas corporation, proposes to issue and sell to
the several Underwriters (as defined below) an aggregate of 11,000,000 shares of
its common stock, par value $5.00 per share (the "FIRM SHARES").
It is understood that, subject to the conditions hereinafter stated,
9,500,000 Firm Shares (the "U.S. FIRM SHARES") will be sold to the several U.S.
Underwriters named in Schedule I hereto (the "U.S. UNDERWRITERS") in connection
with the offering and sale of such U.S. Firm Shares in the United States and
Canada to United States and Canadian Persons (as such terms are defined in the
Agreement Between U.S. and International Underwriters of even date herewith),
and 1,500,000 Firm Shares (the "INTERNATIONAL SHARES") will be sold to the
several International Underwriters named in Schedule II hereto (the
"INTERNATIONAL UNDERWRITERS") in connection with the offering and sale of such
International Shares outside the United States and Canada to persons other than
United States and Canadian Persons. Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx
Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx
& Co., Inc. and Xxxxx Xxxxxx Inc. shall act as representatives (the "U.S.
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REPRESENTATIVES") of the several U.S. Underwriters, and Xxxxxx Xxxxxxx & Co.
International Limited, Xxxxxxx Xxxxx International, Xxxxxx Xxxxxxx & Co., Inc.
and Xxxxx Xxxxxx Inc. shall act as representatives (the "INTERNATIONAL
REPRESENTATIVES") of the several International Underwriters. The U.S.
Underwriters and the International Underwriters are hereinafter collectively
referred to as the "UNDERWRITERS."
The Company also proposes to issue and sell to the several U.S.
Underwriters not more than an additional 1,650,000 shares of its common stock,
par value $5.00 per share, of the Company (the "ADDITIONAL SHARES") if and to
the extent that the U.S. Representatives shall have determined to exercise, on
behalf of the U.S. Underwriters, the right to purchase such shares of common
stock granted to the U.S. Underwriters in Section 2 hereof. The Firm Shares and
the Additional Shares are hereinafter collectively referred to as the "SHARES."
The shares of common stock, par value $5.00 per share, of the Company to be
outstanding after giving effect to the sales contemplated hereby are hereinafter
referred to as the "COMMON STOCK." The Shares will have attached thereto rights
(the "RIGHTS") issued pursuant to a Rights Agreement (the "RIGHTS AGREEMENT")
dated as of August 21, 1995 between the Company and The Bank of New York, as
Rights Agent.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION"), in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder (the
"SECURITIES ACT"), a registration statement on Form S-3 (registration no.
333-44421), including a related prospectus, relating to the registration of
certain shares of Common Stock including the Shares and the related Rights and
certain debt and other securities (the "SHELF SECURITIES"), to be sold from time
to time by the Company. Such registration statement also constitutes
post-effective amendment number 2 to registration statement no. 333-40869 (the
"FIRST PRIOR REGISTRATION STATEMENT") and post-effective amendment number 1 to
registration statement no. 333-04385 (the "SECOND PRIOR REGISTRATION
STATEMENT"). The registration statement as amended at the date of this
Agreement, including information, if any, deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A under the
Securities Act, together with the First Prior Registration Statement and the
Second Prior Registration Statement is hereinafter referred to as the
"REGISTRATION STATEMENT" and the prospectus included therein relating to the
Shelf Securities, in the form first used to confirm sales of the Shares, is
hereinafter referred to as the "BASIC PROSPECTUS." The Basic Prospectus, as
supplemented by the prospectus supplement dated March 4, 1998 (the "PROSPECTUS
SUPPLEMENT"), relating to the Shares, in the form first used to confirm sales of
the Shares is hereinafter referred to as the "PROSPECTUS". If the Company has
filed an abbreviated registration statement pursuant to Rule 462(b)
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under the Securities Act (the "RULE 462 REGISTRATION STATEMENT"), then any
reference herein to the term "Registration Statement" shall be deemed to include
such rule 462 Registration Statement. Any reference to the term Registration
Statement, the Basic Prospectus or the Prospectus shall include the documents
incorporated therein by reference. The terms "SUPPLEMENT" and "AMENDMENT" or
"AMEND" as used in this Agreement shall include all documents subsequently filed
by the Company with the Commission pursuant to the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT"), that are deemed to be incorporated by
reference in the Prospectus. Concurrently with the offering of Shares, the
Company intends to offer $2.35 billion aggregate principal amount of senior
notes of varying maturities (the "DEBT OFFERINGS"). The offering of Shares and
the Debt Offerings are not conditioned upon each other.
On January 30, 1998, the Company acquired from Occidental Petroleum
Corporation ("OCCIDENTAL") all of the capital stock of MidCon Corp. ("MIDCON")
and a short-term note in the aggregate principal amount of $1.39 billion for
$2.1 billion in cash and another short-term note in the aggregate principal
amount of $1.39 billion (the "ACQUISITION"). Upon the consummation of the
Acquisition, MidCon became a wholly owned subsidiary of the Company. MidCon,
MidCon Texas Pipeline Operator, Inc. and Natural Gas Pipeline Company of America
are referred to herein as "SIGNIFICANT MIDCON SUBSIDIARIES". K N Gas Gathering,
Inc., K N Interstate Gas Transmission Co. and K N Services Inc. are referred to
herein as "SIGNIFICANT COMPANY SUBSIDIARIES". The "SIGNIFICANT MIDCON
SUBSIDIARIES" and the "SIGNIFICANT COMPANY SUBSIDIARIES" are collectively
referred to herein as "SIGNIFICANT SUBSIDIARIES".
1. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, (ii) on the original effective date of the Registration
Statement and at the time of the filing of the Company's annual report
on Form 10-K for the year ended December 31, 1997, the Registration
Statement did not contain and, as amended or supplemented, if
applicable, will not contain, any untrue statement of a material fact
or omit to state a material fact required to be
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stated therein or necessary to make the statements therein not
misleading, (iii) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except
that the representations and warranties set forth in this paragraph do
not apply to statements or omissions in the Registration Statement or
the Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter or its counsel
through you expressly for use therein.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the state
of Kansas, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(d) Each Significant Subsidiary has been duly incorporated, is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole; all of the issued shares of capital
stock of each Significant Subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable and, except as
otherwise set forth in the Prospectus, are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances, equities or
claims.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
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(f) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus.
(g) The shares of Common Stock outstanding prior to the
issuance of the Shares have been duly authorized and are validly
issued, fully paid and non-assessable.
(h) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable, and the issuance of such
Shares will not be subject to any preemptive or similar rights.
(i) The Rights Agreement has been duly authorized, executed
and delivered by the Company; the Rights have been duly authorized by
the Company and, when issued upon issuance of the Shares, will be
validly issued, and the shares of Class B Junior Participating Series
Preferred Stock issuable upon exercise of the Rights have been duly
authorized by the Company and validly reserved for issuance, and when
issued upon the exercise of the Rights in accordance with the terms of
the Rights Agreement, will be validly issued, fully paid and
non-assessable.
(j) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not contravene any provision of applicable law or the articles of
incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its Significant
Subsidiaries that is material to the Company and its subsidiaries,
taken as a whole, or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company or any
Significant Subsidiary, and no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is
required for the performance by the Company of its obligations under
this Agreement, except the registration of the Shares under the
Securities Act and such as have been obtained or as may be required by
the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Shares.
(k) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
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(l) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party
or to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or
any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or the documents incorporated therein by reference or to be
filed as an exhibit to the Registration Statement that are not
described or filed as required.
(m) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder.
(n) The Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as such term is defined in the Investment Company Act of 1940,
as amended.
(o) The Company and its subsidiaries (i) are in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are
in compliance with all terms and conditions of any such permit, license
or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(p) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company or to require the Company to include such
securities with the Shares registered pursuant to the Registration
Statement.
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(q) To the knowledge of the Company, no person or corporation
which is a "holding company" or a "subsidiary of a holding company",
within the meaning of such terms as defined in the Public Utility
Holding Company Act of 1935, directly or indirectly owns, controls or
holds with power to vote 10% or more of the outstanding voting
securities of the Company; and the Company is not a "holding company"
or to its knowledge, a "subsidiary of a holding company" as so defined.
(r) The Company and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or
foreign regulatory authorities, including, without limitation, the
Federal Energy Regulatory Commission, necessary to conduct their
respective businesses as described in the Prospectus, except when the
failure to possess such certificates, authorizations or permits would
not have a material adverse effect on the Company and its subsidiaries,
taken as a whole and neither the Company nor any such subsidiary has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(s) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included or incorporated by reference in the Prospectus present fairly
in all material respects the financial position and results of
operations of the entities purported to be shown thereby, at the dates
and for the periods indicated, and have been prepared in conformity
with generally accepted accounting principles applied on a consistent
basis throughout the periods involved, except as otherwise stated
therein.
(t) The pro forma financial statements of the Company, and the
related notes thereto, included in the Prospectus present fairly in all
material respects the pro forma financial position of the Company, as
of the dates indicated and the results of their operations for the
periods specified; the pro forma combined financial information, and
the related notes thereto, included in the Prospectus has been prepared
in accordance with the applicable requirements of the Exchange Act and
is based upon good faith estimates and assumptions believed by the
Company to be reasonable.
(u) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, (i) the
Company
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and its subsidiaries have not incurred any material liability or
obligation, direct or contingent, nor entered into any material
transaction not in the ordinary course of business; (ii) the Company
has not purchased any of its outstanding capital stock, nor declared,
paid or otherwise made any dividend or distribution of any kind on its
capital stock other than ordinary and customary dividends; and (iii)
there has not been any material change in the capital stock, short-term
debt or long-term debt of the Company and its consolidated
subsidiaries, except in each case as described in the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement).
2. Agreements to Sell and Purchase. The Company hereby agrees to sell
to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company at $49.97 a share (the "PURCHASE PRICE") the number of Firm Shares set
forth in Schedules I and II hereto opposite the name of such Underwriter.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the U.S. Underwriters the Additional Shares, and the U.S. Underwriters shall
have a one-time right to purchase, severally and not jointly, up to 1,650,000
Additional Shares at the Purchase Price. If the U.S. Representatives, on behalf
of the U.S. Underwriters, elect to exercise such option, the U.S.
Representatives shall so notify the Company in writing not later than 30 days
after the date of this Agreement, which notice shall specify the number of
Additional Shares to be purchased by the U.S. Underwriters and the date on which
such shares are to be purchased. Such date may be the same as the Closing Date
(as defined below) but not earlier than the Closing Date nor later than ten
business days after the date of such notice. Additional Shares may be purchased
as provided in Section 4 hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Shares. If any
Additional Shares are to be purchased, each U.S. Underwriter agrees, severally
and not jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as the U.S. Representatives may
determine) that bears the same proportion to the total number of Additional
Shares to be purchased as the number of U.S. Firm Shares set forth in Schedule I
hereto opposite the name of such U.S. Underwriter bears to the total number of
U.S. Firm Shares.
The Company hereby agrees that, without the prior written consent of
Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Underwriters, it will not,
during the period ending 90 days after the date of the final prospectus
supplement included in the Prospectus, (i) register, offer, pledge, sell,
contract to sell, sell any
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option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock or (ii) enter into any swap
or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the Shares to be sold hereunder, (B) the
issuance by the Company of shares of Common Stock pursuant to, or the grant of
options under the Company's existing stock option, employee benefit or dividend
reinvestment plans, (C) the issuance of shares of Common Stock by the Company in
connection with future acquisitions provided that the recipients of such shares
agree to be bound by the transfer restrictions set forth herein or (D) the
issuance of securities contemplated by the Additional Offerings (as described in
the Prospectus).
3. Terms of Public Offering. The Company is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Company is further
advised by you that the Shares are to be offered to the public initially at
$52.00 a share (the "PUBLIC OFFERING PRICE") and to certain dealers selected by
you at a price that represents a concession not in excess of $1.25 a share under
the Public Offering Price, and that any Underwriter may allow, and such dealers
may reallow, a concession, not in excess of $0.10 a share, to any Underwriter or
to certain other dealers.
4. Payment and Delivery. Payment for the Firm Shares to be sold by the
Company shall be made to the Company in Federal or other funds immediately
available in New York City against delivery of such Firm Shares for the
respective accounts of the several Underwriters at 10:00 a.m., New York City
time, on the fourth business day after the date of this Agreement, or at such
other time on the same or such other date, not later than 9 business days after
the date of this Agreement as shall be designated in writing by you. The time
and date of such payment are hereinafter referred to as the "CLOSING DATE."
Payment for any Additional Shares shall be made to the Company in
Federal or other funds immediately available in New York City against delivery
of such Additional Shares for the respective accounts of the several U.S.
Underwriters at 10:00 a.m., New York City time, on the date specified in the
notice described in Section 2 or at such other time on the same or on such other
date, in any event not later than 10 business days after expiration of the green
shoe
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option as shall be designated in writing by you. The time and date of such
payment are hereinafter referred to as the "OPTION CLOSING DATE."
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
5. Conditions to the Underwriters' Obligations. The obligations of the
Company to sell the Shares to the Underwriters and the several obligations of
the Underwriters to purchase and pay for the Shares on the Closing Date are
subject to the following further conditions:
(a) no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the Securities Act
and no proceedings for that purpose shall have been instituted or shall
be pending or, to your knowledge or the knowledge of the Company, shall
be contemplated by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel for the Underwriters.
(b) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that is with negative implications, in the rating accorded any
of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of
this Agreement) that,
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in your judgment, is material and adverse and that makes it,
in your judgment, impracticable to market the Shares on the
terms and in the manner contemplated in the Prospectus.
(c) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date, and signed by each of the chief
executive officer and the chief financial officer of the Company, to
the effect set forth in Section 5(b)(i) above and to the effect that
the representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date and that the
Company has complied with all of the agreements and satisfied all of
the conditions on its part to be performed or satisfied hereunder on or
before the Closing Date.
(d) The Underwriters shall have received on the Closing Date
an opinion or opinions of Xxxxxxx Xxxxxxx & Xxxxxxxx, outside counsel
for the Company, to the effect set forth in Exhibit A-1, an opinion of
Xxxxxx Xxxxxx, Esq., Vice President, General Counsel and Secretary of
the Company, to the effect set forth in Exhibit A-2, and an opinion of
Polsinelli, White, Xxxxxxxx & Xxxxxxx, Kansas counsel to the Company,
to the effect set forth in Exhibit A-3, in each case dated as of the
Closing Date. Such opinions shall be rendered to the Underwriters at
the request of the Company and shall so state therein.
(e) The Underwriters shall have received on the Closing Date
an opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters,
dated the Closing Date, in form and substance satisfactory to the
Underwriters.
(f) The Underwriters shall have received on each of the date
hereof and on the Closing Date letters, dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to
the Underwriters, from Xxxxxx Xxxxxxxx LLP, independent public
accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information relating to each of the Company and MidCon contained in or
incorporated by reference in the Registration Statement and the
Prospectus; provided that the letters delivered on the Closing Date
shall use a "cut-off" date not earlier than the date hereof.
(g) The "lock-up" agreements, each substantially in the form
of Exhibit A hereto, between you and the executive officers and
directors of the Company relating to sales and certain other
dispositions of shares of
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Common Stock or certain other securities, delivered to you on or before
the date hereof, shall be in full force and effect on the Closing Date.
The several obligations of the U.S. Underwriters to purchase Additional
Shares hereunder are subject to the delivery to the U.S. Representatives on the
Option Closing Date of such documents as you may reasonably request with respect
to the good standing of the Company, the due authorization and issuance of the
Additional Shares and other matters related to the issuance of the Additional
Shares.
6. Covenants of the Company. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, six signed copies of
the Registration Statement (including exhibits and documents
incorporated by reference thereto) and for delivery to each other
Underwriter a conformed copy of the Registration Statement (without
exhibits thereto) and to furnish to you in New York City, without
charge, prior to 10:00 a.m. New York City time on the business day next
succeeding the date of this Agreement and during the period mentioned
in Section 6(d) below, as many copies of the Prospectus and any
supplements and amendments thereto or to the Registration Statement as
you may reasonably request.
(b) During the period in which the Prospectus is required by
law to be delivered in connection with sales of the Shares, before
amending or supplementing the Registration Statement or the Prospectus,
(including by filing any document that would as a result thereof be
incorporated by reference in the Prospectus) to furnish to you a copy
of each such proposed amendment, supplement or other document and not
to file any such proposed amendment, supplement or other document to
which you reasonably object, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) During the period when the Prospectus is required by law
to be delivered in connection with sales of the Shares, to file
promptly all documents required to be filed with the Commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(d) If, during such period after the first date of the public
offering of the Shares as in the reasonable opinion of counsel for the
Underwriters or counsel for the Company the Prospectus is required by
law to be
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delivered in connection with sales by an Underwriter or dealer, any
event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if, in the
reasonable opinion of counsel for the Underwriters or counsel for the
Company, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses you will furnish to the Company)
to which Shares may have been sold by you on behalf of the Underwriters
and to any other dealers upon request, either amendments or supplements
to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances
when the Prospectus is delivered to a purchaser, be misleading or so
that the Prospectus, as amended or supplemented, will comply with law.
(e) To endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request and to maintain such qualifications for as long as
the Underwriters shall reasonably request.
(f) To make generally available to the Company's security
holders and to you as soon as practicable an earning statement that
satisfies the provisions of Section 11(a) of the Securities Act and the
rules and regulations of the Commission thereunder.
(g) To comply with all rules and regulations of the New York
Stock Exchange in respect of the listing of the Shares and to use its
best efforts to cause the Shares to be eligible for trading thereon.
(h) For a period of five years after the Closing Date, to
furnish to you and, upon request, to each Underwriter, copies of all
annual reports, quarterly reports and current reports filed with the
Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as
may be designated by the Commission, and such other documents, reports
and information as shall be furnished by the Company to its
stockholders generally.
7. Expenses. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company agrees to
pay or cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees, disbursements and
expenses of the Company's counsel and the Company's accountants in connection
13
15
with the registration and delivery of the Shares under the Securities Act and
all other fees or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof to the
Underwriters and dealers, in the quantities hereinabove specified, (ii) all
costs and expenses related to the transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable thereon, (iii) the
cost of printing or producing any Blue Sky memorandum in connection with the
offer and sale of the Shares under state securities laws and all expenses in
connection with the qualification of the Shares for offer and sale under state
securities laws as provided in Section 6(c) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky
memorandum, (iv) all filing fees and the reasonable fees and disbursements of
counsel to the Underwriters, if any, incurred in connection with the review and
qualification of the offering of the Shares by the National Association of
Securities Dealers, Inc., (v) all fees and expenses, if any, in connection with
the preparation and filing of the registration statement on Form 8-A relating to
the Common Stock and all costs and expenses incident to listing the Shares on
the NYSE, (vi) the cost of printing certificates representing the Shares, (vii)
the costs and charges of any transfer agent, registrar or depositary, (viii) the
costs and expenses of the Company relating to investor presentations on any
"road show" undertaken in connection with the marketing of the offering of the
Shares, including, without limitation, expenses associated with the production
of road show slides and graphics, fees and expenses of any consultants engaged
in connection with the road show presentations with the prior approval of the
Company, travel and lodging expenses of the representatives and officers of the
Company and any such consultants, and the cost of any aircraft chartered in
connection with the road show, and (ix) all other costs and expenses incident to
the performance of the obligations of the Company hereunder for which provision
is not otherwise made in this Section. It is understood, however, that except as
provided in this Section, Section 8 entitled "Indemnity and Contribution", and
the last paragraph of Section 10 below, the Underwriters will pay all of their
costs and expenses, including fees and disbursements of their counsel, stock
transfer taxes payable on resale of any of the Shares by them and any
advertising expenses connected with any offers they may make.
8. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action
14
16
or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you or through your counsel expressly for use
therein; provided, however, that the foregoing indemnity agreement with respect
to any preliminary prospectus shall not inure to the benefit of any Underwriter
from whom the person asserting any such losses, claims, damages or liabilities
purchased Shares, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not sent or given by or on behalf of
such Underwriter to such person, if required by law so to have been delivered,
at or prior to the written confirmation of the sale of the Shares to such
person, and if the Prospectus (as so amended or supplemented) would have cured
the defect giving rise to such losses, claims, damages or liabilities, unless
such failure is the result of noncompliance by the Company with Section 6(a)
hereof.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, the directors of the Company, the officers of the
Company who signed the Registration Statement and each person, if any, who
controls the Company within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Company to such Underwriters, but only with reference to
information relating to such Underwriter furnished to the Company in writing by
such Underwriter through you or through your counsel expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 8(a) or 8(b), such person (the "INDEMNIFIED PARTY")
shall promptly notify the person against whom such indemnity may be sought (the
"INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of
15
17
such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by Xxxxxx Xxxxxxx &
Co. Incorporated in the case of parties indemnified pursuant to Section 8(a),
and by the Company, in the case of parties indemnified pursuant to Section 8(b).
The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for reasonable fees and expenses of counsel as
contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) To the extent the indemnification provided for in Section 8(a) or
8(b) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Shares or (ii) if the allocation provided by
clause 8(d)(i) above is not permitted by applicable
16
18
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause 8(d)(i) above but also the relative fault of the
Company on the one hand and of the Underwriters on the other hand in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Shares shall be deemed
to be in the same respective proportions as the net proceeds from the offering
of the Shares (before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover of the Prospectus, bear to the
aggregate Public Offering Price of the Shares. The relative fault of the Company
on the one hand and the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company (including information relating
to MidCon) or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Underwriters' respective obligations to contribute pursuant to
this Section 8 are several in proportion to the respective number of Shares they
have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in Section 8(d). The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 8 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
17
19
(f) The indemnity and contribution provisions contained in this Section
8 and the representations, warranties and other statements of the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter or
any person controlling the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Shares.
9. Termination. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, the New York
Stock Exchange or the National Association of Securities Dealers, Inc., (ii)
trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in your judgment, is material and adverse and (b) in
the case of any of the events specified in clauses 9(a)(i) through 9(a)(iv),
such event, singly or together with any other such event, makes it, in your
judgment, impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus.
10. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Shares that
it has or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule II bears to the aggregate number of
Firm Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase the
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; provided that in no event shall the number of
Shares that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 10 by an amount in excess of one-ninth of
such number of Shares without the written consent of such Underwriter. If, on
the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is
18
20
more than one-tenth of the aggregate number of Firm Shares to be purchased, and
arrangements satisfactory to you and the Company for the purchase of such Firm
Shares are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
Company. In any such case you shall have the right to postpone the Closing Date,
but in no event for longer than seven days, in order that the required changes,
if any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. If, on the Option Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Additional Shares
and the aggregate number of Additional Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Additional Shares to be
purchased, the non-defaulting Underwriters shall have the option to (i)
terminate their obligation hereunder to purchase Additional Shares or (ii)
purchase not less than the number of Additional Shares that such non-defaulting
Underwriters would have been obligated to purchase in the absence of such
default. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the reasonable fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
11. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
19
21
13. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
K N Energy, Inc.
By: /s/ E. Xxxxx Xxxxxxxxx
--------------------------------
E. Xxxxx Xxxxxxxxx
Vice President and Treasurer
Accepted as of the date hereof
XXXXXX XXXXXXX & CO.
INCORPORATED
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
XXXXXX XXXXXXX & CO., INC.
XXXXX XXXXXX INC.
Acting severally on behalf of themselves and the
several U.S. Underwriters named in Schedule I
hereto.
By: XXXXXX XXXXXXX & CO.
INCORPORATED
By: /s/ Xxxxx X. Xxxxxxxxxx
-----------------------
Xxxxx X. Xxxxxxxxxx
Principal
20
22
XXXXXX XXXXXXX & CO.
INTERNATIONAL LIMITED
XXXXXXX XXXXX INTERNATIONAL
XXXXXX XXXXXXX & CO., INC.
XXXXX XXXXXX INC.
Acting severally on behalf of themselves
and the several International Underwriters
named in Schedule II hereto.
By: XXXXXX XXXXXXX & CO.
INTERNATIONAL LIMITED
By: /s/ Xxxxx X. Xxxxxxxxxx
-----------------------
Xxxxx X. Xxxxxxxxxx
Principal
21
23
SCHEDULE I
NUMBER OF FIRM SHARES
U.S. UNDERWRITERS TO BE PURCHASED
-------------------------------------------------------------- ---------------------
Xxxxxx Xxxxxxx & Co. Incorporated............................. 1,835,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx 1,835,000
Incorporated.........................................
Xxxxxx Xxxxxxx & Co., Inc..................................... 1,835,000
Xxxxx Xxxxxx Inc.............................................. 1,835,000
CIBC Xxxxxxxxxxx Corp......................................... 180,000
Credit Suisse First Boston Corporation........................ 180,000
Xxxx Xxxxxxxx Incorporated.................................... 90,000
X.X. Xxxxxxx & Sons, Inc...................................... 180,000
Xxxxxxx, Sachs & Co........................................... 180,000
Howard, Weil, Labouisse, Xxxxxxxxxx
Incorporated......................................... 180,000
Xxxxxxxxx & Company, Inc...................................... 180,000
Xxxxxx X. Xxxxx & Co., L.P.................................... 90,000
Xxxxxx Brothers Inc........................................... 180,000
X.X. Xxxxxx Securities Inc.................................... 180,000
PaineWebber Incorporated...................................... 180,000
Prudential Securities Incorporated............................ 180,000
Scotia Capital Markets (USA) Inc. 180,000
---------
Total:............................................... 9,500,000
=========
24
SCHEDULE II
NUMBER OF FIRM SHARES
INTERNATIONAL UNDERWRITERS TO BE PURCHASED
--------------------------------------------------------------- ---------------------
Xxxxxx Xxxxxxx & Co. International Limited..................... 325,000
Xxxxxxx Xxxxx International.................................... 325,000
Xxxxxx Xxxxxxx & Co., Inc...................................... 325,000
Xxxxx Xxxxxx Inc............................................... 325,000
Kleinwort Xxxxxx Limited....................................... 100,000
UBS Limited.................................................... 100,000
---------
Total International Firm Shares....................... 1,500,000
=========
25
EXHIBIT A
LOCK-UP LETTER
February __, 1998
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxx Xxxxxxx & Co., Inc.
Xxxxx Xxxxxx Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx & Co. International Limited
Xxxxxxx Xxxxx International
Xxxxxx Xxxxxxx & Co., Inc.
Xxxxx Xxxxxx Inc.
x/x Xxxxxx Xxxxxxx & Xx. Xxxxxxxxxxxxx Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated
("XXXXXX XXXXXXX") and Xxxxxx Xxxxxxx & Co. International Limited ("MSIL")
propose to enter into an Underwriting Agreement (the "UNDERWRITING AGREEMENT")
with K N Energy, Inc., a Kansas corporation (the "COMPANY"), providing for the
public offering (the "PUBLIC OFFERING") by the several Underwriters, including
Xxxxxx Xxxxxxx and MSIL (the "UNDERWRITERS"), of shares (the "SHARES") of the
Common Stock (par value $5.00 per share) of the Company (the "COMMON STOCK").
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of Xxxxxx
Xxxxxxx on behalf of the Underwriters, the undersigned will not, during the
period commencing on the date of the Underwriting Agreement and ending 90 days
after the date of the
26
final prospectus supplement relating to the Public Offering (except that none of
the following shall limit the undersigned's rights under any existing stock
option or employee benefit plans (as such plans are in effect on the date
hereof), it being understood that any Common Stock acquired pursuant to such
plans shall otherwise be subject to the terms of this lock-up letter), (1)
offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of, directly or indirectly, any shares
of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or (2) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of the Common Stock, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise.
The undersigned hereby acknowledges that, notwithstanding the
foregoing, if the undersigned is an individual, he or she may transfer any or
all of his or her shares of Common Stock either during his or her lifetime or on
death by gift, will or intestacy (i) to his or her immediate family, (ii) to a
trust, partnership or other entity, the beneficiaries, partners or equity
holders of which are exclusively the undersigned and/or a member or members of
his or her immediate family or (iii) to his or her xxxx mater; provided,
however, that in any such case, it shall be a condition to the transfer that the
transferee execute an agreement stating that the transferee is receiving and
holding the shares of Common Stock subject to the provisions of this lock-up
letter, and there shall be no further transfer of such shares of Common Stock
except in accordance with this lock-up letter. For purposes of this paragraph,
"immediate family" shall mean a lineal descendant, spouse, adopted child,
father, mother, brother or sister of the transferor and the spouses, adopted
children and lineal descendants of any of the foregoing.
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
----------------------------------------
(Name)
----------------------------------------
(Address)
2
27
EXHIBIT A-1
OPINION OF OUTSIDE COUNSEL FOR
THE COMPANY
The opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, outside counsel for the
Company to be delivered pursuant to Section 5(d) of the Underwriting Agreement,
shall be to the effect that:
(i) The Registration Statement has become effective under the Act and,
to such counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued or proceeding for that purpose has been
instituted or threatened by the Commission;
(ii) The issue and sale of the Shares by the Company and the compliance
by the Company with all of the provisions of the Underwriting Agreement will not
violate any federal or New York statute or any rule or regulation that has been
issued pursuant to any federal or New York statute or any order known to such
counsel issued pursuant to any federal or New York statute by any court or
governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or properties, and no consent, approval, authorization or order,
registration, or qualification of or with, any federal or New York governmental
body or agency or, to our knowledge, any federal or New York court is required
for the issue and sale of the Shares by the Company and the compliance by the
Company with all of the provisions of this Agreement, except for registration
under the Act of the Shares and such as may be required by the securities or
Blue Sky laws of the various states in connection with the purchase and
distribution of the Shares by the Underwriters;
(iii) The statements in the Prospectus under the captions "Description
of Capital Stock" insofar as they purport to constitute summaries of the terms
of the Company's capital stock (including the Shares), constitute accurate
summaries of the terms of such capital stock in all material respects;
(iv) The statements made in the Prospectus under the caption "Certain
United States Tax Consequences to Non-U.S. Holders," insofar as they purport to
constitute summaries of matters of United States federal tax law and regulations
or legal conclusions with respect thereto, constitute accurate summaries of the
matters described therein in all material respects;
A-1-1
28
(v) The Company is not an "investment company" within the meaning of,
or subject to regulation under, the Investment Company Act of 1940, as amended;
and
(vi) Such counsel (A) is of the opinion that the Registration
Statement, as of its effective date, and Prospectus, as of the date of the
Underwriting Agreement, (except for financial statements and schedules and other
financial or statistical data included therein as to which such counsel need not
express any opinion) comply as to form in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder, (B) has no reason to believe that (except for financial statements
and schedules and other financial or statistical data as to which such counsel
need not express any belief) the Registration Statement at the time the
Registration Statement became effective or on the date of the filing of the
latest annual report on Form 10-K after the initial effective date of the
Registration Statement, contained any untrue statements of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (C) has no reason to believe that
(except for financial statements and schedules and other financial or
statistical data as to which such counsel need not express any belief) the
Prospectus at the time the Prospectus Supplement was issued contained or
contains any untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
A-1-2
29
EXHIBIT A-2
OPINION OF GENERAL COUNSEL OF THE COMPANY
The opinion of Xxxxxx X. Xxxxxx, Esq., Vice President, General Counsel and
Secretary of the Company, to be delivered pursuant to Section 5(d) of the
Underwriting Agreement, shall be to the effect that:
A. Each of the Company and the Significant Subsidiaries (i) is duly
qualified to do business as a foreign corporation and is in good standing under
the laws of each jurisdiction which requires such qualification wherein it owns
or leases material properties or conducts material business, except where the
failure to be so qualified or in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole, and (ii) holds all
material approvals, authorizations, orders, licenses, certificates and permits
from governmental authorities necessary for the conduct of its business as
described in the Prospectus, except where the failure to hold such approvals,
authorizations, orders, licenses, certificates and/or permits would not,
singularly or in the aggregate, have a material adverse effect on the Company
and its subsidiaries, taken as a whole;
B. Each of the Significant Subsidiaries has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction in which it is incorporated, with full corporate power and
authority to own its properties and conduct its business as described in the
Prospectus except to the extent that the failure to be in good standing would
not have a material adverse effect on the Company and its subsidiaries, taken as
a whole;
C. All the outstanding shares of capital stock of each Significant
Subsidiary have been duly and validly authorized and issued and are fully paid
and nonassessable, and, except as otherwise set forth in the Prospectus, all of
such shares are owned by the Company either directly or through one or more
subsidiaries free and clear of any pledge, security interest, claim, lien or
other encumbrance;
D. The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus;
E. The shares of Common Stock outstanding prior to the issuance of the
Shares, have been duly authorized and validly issued and are fully paid and
non-assessable and none of the shares of Common Stock (including the Shares) was
issued in violation of the preemptive or other similar rights known to such
counsel of any securityholder of the Company;
X-0-0
00
X. Each of the Underwriting Agreement and the Rights Agreement has been
duly executed and delivered by the Company;
G. Such counsel does not know of any statutes or regulations, or any
pending or threatened legal or governmental proceedings, required to be
described in the Prospectus that are not described as required, nor of any
contracts or documents of a character required to be described or referred to in
the Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described, referred to or filed as required;
H. The descriptions included in or incorporated by reference in the
Prospectus of the statutes, regulations, legal or governmental proceedings,
contracts and other documents therein described are accurate and fairly
summarize the matters referred to therein;
I. No consent, approval, authorization or order of any court or
governmental agency or body is required to be obtained by the Company or any
subsidiary for the consummation of the transactions contemplated herein in
connection with the purchase and sale of the Shares by the Underwriters, except
such approvals (specified in such opinion) as have been obtained;
J. The execution and delivery by the Company of the Underwriting
Agreement, the issuance and delivery of the Shares, the consummation by the
Company of the transactions contemplated therein and in the Registration
Statement and compliance by the Company with the terms of the Underwriting
Agreement do not and will not result in any violation of the charter or by-laws
of the Company or any Significant Company Subsidiary, or to the best of such
counsel's knowledge, after due inquiry, any Significant MidCon Subsidiary, and
do not and will not conflict with, or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or asset of the
Company or any Significant Company Subsidiary or to the best of such counsel's
knowledge, after due inquiry, any Significant MidCon Subsidiary, under (A) any
indenture, mortgage or loan agreement, or any other agreement or instrument
known to such counsel, to which the Company or any Significant Subsidiary is a
party or by which it may be bound or to which any of its properties may be
subject, (B) any existing applicable law, rule or regulation (other than the
securities or blue sky laws of the various states, as to which such counsel need
express no opinion), or (C) any judgment, order or decree of any government,
governmental instrumentality or court, domestic or foreign, known to such
counsel having jurisdiction over the Company or any Significant Subsidiary or
any of its properties (except, in the case of subclauses (A) and (B) hereof, for
such conflicts,
A-2-2
31
breaches or defaults or liens, charges or encumbrances that would not have a
material adverse effect on the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise or the transactions contemplated by the
Underwriting Agreement);
K. The Company and the Significant Company Subsidiaries and, to the
knowledge of such counsel (after due inquiry), the Significant MidCon
Subsidiaries, hold all requisite Certificates of Public Convenience and
Necessity from the Federal Energy Regulatory Commission to enable them to carry
on the respective businesses in which they are engaged;
L. To the knowledge of such counsel (after due inquiry), none of the
Company or any Significant Subsidiary is in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, loan agreement, note, lease or other
agreement or instrument that is described or referred to in the Registration
Statement or Prospectus or filed as an exhibit to the Registration Statement;
M. To the knowledge of such counsel, after due inquiry, no person or
corporation which is a "holding company" or a "subsidiary of a holding company,"
within the meaning of such terms as defined in the Public Utility Holding
Company Act of 1935, directly or indirectly owns, controls or holds with power
to vote 10% or more of the outstanding voting securities of the Company; and the
Company is not a "holding company" or to the knowledge of such counsel, after
due inquiry, a "subsidiary of a holding company" as so defined; and
N. The documents incorporated by reference in the Prospectus (except for
the consolidated financial statements and other financial or statistical data
included therein or omitted therefrom, as to which such counsel need express no
opinion), as of the dates they were filed with the Commission or to the extent
such documents were subsequently amended prior to the date hereof, at the time
so amended, complied as to form in all material respects with the requirements
of the Exchange Act and the regulations thereunder.
In addition, such counsel shall state that such counsel has participated
in the preparation of the Registration Statement and the Prospectus (including
the documents incorporated by reference therein) and participated in conferences
with representatives of your legal counsel and representatives of the
Underwriters at which the contents of the Registration Statement and the
Prospectus and related matters were discussed. Such counsel shall also state
that although such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement
A-2-3
32
and the Prospectus except as stated above, such counsel advises you that, on the
basis of the foregoing, no facts have come to such counsel's attention which
lead such counsel to believe that (A) the Registration Statement or any
amendments thereto (other than the financial statements, the Statements of
Eligibility and Qualification of the Trustee on Form T-1s and other financial or
statistical information included or incorporated by reference therein as to
which such counsel need not comment), at the time the Registration Statement
initially became effective, on the effective date of the most recent
post-effective amendment thereto, if any, on the date of the filing of the
latest annual report on Form 10-K after the initial effective date of the
Registration Statement, or on the date of the Underwriting Agreement, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or (B) the Prospectus or any amendment or supplement thereto (other
than the financial statements and other financial or statistical information
included or incorporated by reference therein as to which such counsel need not
comment), at the time the Prospectus Supplement was issued or at the Closing
Date contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
In rendering such opinions, such counsel may (A) state that her opinion is
limited to the laws of the State of Colorado, the General Corporation Law of the
State of Delaware and the federal laws of the United States and (B) rely as to
matters involving the application of laws of any jurisdiction other than the
State of Colorado or the United States, to the extent deemed proper and
specified in such opinion, upon the opinions of Polsinelli, White, Xxxxxxxx &
Xxxxxxx and other local counsel of good standing believed to be reliable and who
are satisfactory to counsel for the Underwriters and as to matters of fact, to
the extent deemed proper, on certificates of responsible officers of the Company
and public officials.
A-2-4
33
EXHIBIT A-3
OPINION OF KANSAS COUNSEL OF THE COMPANY
The opinion of Polsinelli, White, Xxxxxxxx & Shalton, Kansas counsel to
the Company, to be delivered pursuant to Section 5(d) of the Underwriting
Agreement, shall be to the effect that:
A. The Company is duly incorporated, validly existing and in good standing
under the laws of the State of Kansas, with corporate power and authority under
such laws to own its properties and conduct its business as described in the
Prospectus.
B. The Shares have been duly authorized and, when issued and delivered in
accordance with the terms of the Underwriting Agreement, will be validly issued,
fully paid and non-assessable, and the issuance of such Shares will not be
subject to any preemptive or similar rights arising under the Company's articles
of incorporation or by-laws or under the laws of the State of Kansas.
C. The Underwriting Agreement has been duly authorized by the Company.
D. The Rights Agreement has been duly authorized by the Company; the
Rights have been duly authorized by the Company and, when issued upon issuance
of the Shares, will be validly issued, and the shares of Class B Junior
Participating Series Preferred Stock issuable upon exercise of the Rights have
been duly authorized by the Company and, when issued upon such exercise in
accordance with the terms of the Rights Agreement, will be validly issued, fully
paid and non-assessable; and
E. No approval, authorization, consent or other action (other than under
the securities or blue sky laws of the State of Kansas) is required by any
regulatory authority or governmental body of the State of Kansas for the valid
issuance, sale, and delivery by the Company of the Shares pursuant to the
Underwriting Agreement and to the best of our knowledge, do not result in any
breach or violation of any judgment, order or decree of any governmental body,
agency or court located in Kansas having jurisdiction over the Company.
A-3-1
34
11,000,000 Shares
K N ENERGY, INC.
Common Stock, Par Value $5.00 Per Share
AGREEMENT AMONG INTERNATIONAL UNDERWRITERS
Exhibit A - Underwriting Agreement
Exhibit B - Agreement Between U.S. and
International Underwriters
Exhibit C - International Dealer Agreement
March 4, 1998
35
Xxxxxx Xxxxxxx & Co. International Limited
Xxxxxxx Xxxxx International
Xxxxxx Xxxxxxx & Co., Inc.
Xxxxx Xxxxxx, Inc.
x/x Xxxxxx Xxxxxxx & Xx. Xxxxxxxxxxxxx Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs:
We understand that K N Energy, Inc., a Kansas corporation (the "COMPANY"),
proposes to issue and sell to the several Underwriters (as defined below) an
aggregate of 11,000,000 shares (the "FIRM SHARES") of its common stock, par
value $5.00 per share ("COMMON STOCK") pursuant to an underwriting agreement
(the "UNDERWRITING AGREEMENT"), substantially in the form attached hereto as
Exhibit A, with you as representatives (the "INTERNATIONAL REPRESENTATIVES") of
the international underwriters named in Schedule II thereto (the "INTERNATIONAL
UNDERWRITERS"), and Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co., Inc. and Xxxxx Xxxxxx Inc. as
representatives (the "U.S. REPRESENTATIVES") of the U.S. underwriters named in
Schedule I thereto (the "U.S. UNDERWRITERS"). The International Underwriters and
the U.S. Underwriters are hereinafter collectively referred to as the
Underwriters.
Of such Firm Shares 1,500,000 shares are to be offered outside the United
States and Canada by the International Underwriters (the "INTERNATIONAL SHARES")
and 9,500,000 shares are to be offered by the U.S. Underwriters in the United
States and Canada (the "U.S. FIRM SHARES").
In addition, the several U.S. Underwriters will have an option to purchase
from the Company an additional 1,650,000 shares (the "ADDITIONAL SHARES") to
provide for over-allotments. The term "U.S. SHARES" shall mean the U.S. Firm
Shares and the Additional Shares. The U.S. Shares and the International Shares
are hereinafter collectively referred to as the Shares.
36
We further understand that the Company has filed with the U.S. Securities
and Exchange Commission (the "COMMISSION") a registration statement including a
U.S. prospectus and an international prospectus relating to the Shares.
I.
We hereby confirm our agreement with you that the International Shares
shall be purchased by you and the other several International Underwriters,
including ourselves, pursuant to the terms of and as set forth in the
Underwriting Agreement. We further understand that the International
Representatives propose to enter into an agreement with the U.S. Representatives
(the "AGREEMENT BETWEEN U.S. AND INTERNATIONAL UNDERWRITERS"), substantially in
the form attached hereto as Exhibit B, pursuant to Article I of which, and
subject to the conditions thereof, the several International Underwriters,
including ourselves, could become obligated to purchase Shares from, or sell
Shares to, the U.S. Underwriters.
We authorize you (a) to execute and deliver the Underwriting Agreement and
the Agreement Between U.S. and International Underwriters on our behalf in
substantially the forms of Exhibits A and B hereto, respectively, and to make
representations and agreements on our behalf as set forth therein, (b) to vary
the offering terms of the International Shares in effect at any time, including
the offering price, the concession and the reallowance, (c) to agree to the
price at which the International Shares are to be purchased from the Company,
(d) to agree, on our behalf, to any addition to, change in or waiver of any
provision of the Underwriting Agreement (other than a change in the purchase
price of the International Shares and the respective numbers of International
Shares set forth opposite our names in Schedule II thereto) or of the Agreement
Between U.S. and International Underwriters (other than a change in the price at
which the International Underwriters purchase Shares pursuant to Article I
thereof) and (e) to take any other action as may seem advisable to you in
respect of the offering of the International Shares. The number of Shares set
forth opposite each Underwriter's name in Schedule I or in Schedule II of the
Underwriting Agreement (or such amount increased as provided in Section 10 of
the Underwriting Agreement) is hereinafter referred to as the Original Purchase
Obligation of such Underwriter, and the ratio that such Original Purchase
Obligation of any International Underwriter bears to the total number of
International Shares, expressed as a percentage, is hereinafter referred to as
the International Underwriting Percentage of such International Underwriter.
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37
II.
We authorize you to act as the Lead Managers of the offering by the
International Underwriters of the International Shares outside of the United
States and Canada and to take such action as may seem advisable to you in
respect thereof. The offering of the International Shares is to be made as soon
after the registration statement filed with the Commission relating to the
Shares becomes effective (as then amended, the "REGISTRATION STATEMENT") as in
your judgment and the judgment of the U.S. Representatives is advisable, at the
offering price set forth in, and on the other terms and conditions as you shall
determine in accordance with, the Underwriting Agreement. The offering of the
International Shares is to be made on the terms and conditions to be set forth
in the Underwriting Agreement, the Agreement Between U.S. and International
Underwriters and in the prospectus first used to confirm sales of the
International Shares (the "INTERNATIONAL PROSPECTUS"), whether or not filed
pursuant to Rule 424 under the U.S. Securities Act of 1933, as amended (the
"Act"). During the term of this Agreement, advertisement of the offering outside
of the United States and Canada will be made only by Xxxxxx Xxxxxxx & Co.
International Limited. Such advertisement will be made on behalf of the
International Underwriters on such dates and in such countries as Xxxxxx Xxxxxxx
& Co. International Limited shall determine.
We authorize Xxxxxx Xxxxxxx & Co. International Limited to determine
whether to purchase, and, if such determination is made, to purchase, any Shares
for the account of the International Underwriters pursuant to the Agreement
Between U.S. and International Underwriters. We further authorize Xxxxxx Xxxxxxx
& Co. International Limited to determine whether to sell, and, if such
determination is made, to sell, Shares for the account of the International
Underwriters pursuant to such Agreement.
We authorize Xxxxxx Xxxxxxx & Co. International Limited to offer or to
sell for our account to dealers selected by it (among whom may be included any
International Underwriter) such Shares purchased by us from the Company or
pursuant to the Agreement Between U.S. and International Underwriters as Xxxxxx
Xxxxxxx & Co. International Limited shall determine. Sales of Shares to dealers
shall be made for the account of each International Underwriter approximately in
the proportion that Shares of such International Underwriter held by Xxxxxx
Xxxxxxx & Co. International Limited for such sales bear to the total Shares so
held. Such sales shall be made pursuant to dealer agreements substantially in
the form attached as Exhibit C hereto.
We authorize Xxxxxx Xxxxxxx & Co. International Limited to offer or sell
for our account to certain persons (other than the persons to whom Shares are
sold pursuant to the terms of the immediately preceding paragraph) such Shares
purchased by us from the Company or pursuant to the Agreement Between U.S. and
International Underwriters as it shall determine at the offering price set forth
in the International Prospectus. Except for sales for the accounts of
International Underwriters designated by a purchaser,
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38
aggregate sales of Shares to such persons shall be made for the accounts of the
several International Underwriters as nearly as practicable in their respective
International Underwriting Percentages.
Xxxxxx Xxxxxxx & Co. International Limited will advise us promptly as to
the number of Shares purchased by us that we shall retain for direct sale. At
any time prior to the termination of this Agreement, any Shares purchased by us
that are held by Xxxxxx Xxxxxxx & Co. International Limited for sale for our
account as set forth above but not sold may, upon our request and at Xxxxxx
Xxxxxxx & Co. International Limited's discretion, be released to us for direct
sale, and Shares so released to us shall no longer be deemed held for sale by
you.
From time to time prior to the termination of this Agreement, at Xxxxxx
Xxxxxxx & Co. International Limited's request, we will advise it of the number
of Shares remaining unsold that were retained by or released to us for direct
sale and of the number of Shares remaining unsold that were delivered to us
pursuant to Article III and, at Xxxxxx Xxxxxxx & Co. International Limited's
request, we will release to it any such Shares remaining unsold for sale by it
(i) for our account to dealers or certain other persons or (ii) if in its
opinion, such Shares are needed to make delivery against sales made pursuant to
Article III.
III.
We confirm that, pursuant to the Agreement Between U.S. and International
Underwriters, the International Underwriters are authorizing Xxxxxx Xxxxxxx &
Co. Incorporated to buy and sell Common Stock for the accounts of the several
Underwriters, including the International Underwriters, in the open market or
otherwise, for long or short account, on such terms as it shall deem advisable
and to over-allot in arranging sales. Any shares of Common Stock that may have
been purchased by the U.S. Representatives for stabilizing purposes in
connection with the offering of the Shares prior to the execution of this
Agreement and the Agreement Between U.S. and International Underwriters shall be
treated as having been purchased pursuant to this paragraph and the Agreement
Between U.S. and International Underwriters for the accounts of the several
Underwriters. We authorize Xxxxxx Xxxxxxx & Co. International Limited to
over-allot in arranging sales. We recognize that the International Primary
Market Association (IPMA) limits will not be complied with in connection with
stabilization losses and expenses. Subject to the provisions of the Agreement
Between U.S. and International Underwriters, all such purchases, sales and
over-allotments for the International Underwriters as a group shall be for the
accounts of the several International Underwriters as nearly as practicable in
their respective International Underwriting Percentages. At no time shall our
net commitment pursuant to the foregoing authorization exceed 15% of our
Original Purchase Obligation, and, in determining our
4
39
net commitment for short account, there shall be subtracted any Shares that you
have agreed to purchase for our account pursuant to Article I of the Agreement
Between U.S. and International Underwriters. On demand we will take up and pay
for any shares of Common Stock so purchased for our account and deliver against
payment any shares of Common Stock so sold or over-allotted for our account. The
International Representatives agree to notify us of the date of termination of
stabilization when so notified by Xxxxxx Xxxxxxx & Co. Incorporated pursuant to
the Agreement Between U.S. and International Underwriters.
If pursuant to the provisions of the preceding paragraph and prior to the
termination of this Agreement (or prior to such earlier date as the
International Representatives may have determined), the U.S. Representatives
purchase or contract to purchase in the open market or otherwise any Shares that
were retained by or released to us for direct sale, or any Shares that may have
been issued on transfer of or in exchange for such Shares, and which Shares were
therefore not effectively placed for investment by us, we authorize the
International Representatives either to charge our account with an amount equal
to the selling concession with respect thereto, which amount shall be credited
against the cost of such Shares, or to require us to repurchase such Shares at a
price equal to the total cost of such purchase, including commissions, if any,
and any taxes on redelivery.
IV.
On the Closing Date (as defined in the Underwriting Agreement), prior to
8:45 A.M. (New York City time) we will deliver to Xxxxxx Xxxxxxx & Co.
International Limited, Federal or other funds immediately available in New York
City in the manner as you shall advise for (i) an amount equal to the offering
price less the selling concession in respect of the Shares to be purchased by
us, (ii) an amount equal to the offering price less the selling concession in
respect of such of the Shares to be purchased by us as shall have been retained
by or released to us for direct sale or (iii) the amount set forth or indicated
in a telex to us, as you shall advise. You will make payment to the Company
against delivery to you for our account of the Shares to be purchased by us and
you will deliver to us the Shares paid for by us which shall have been retained
by or released to us for direct sale. Unless we promptly give you written
instructions otherwise, if transactions in the Shares may be settled through the
facilities of The Depository Trust Company, payment for and delivery of Shares
purchased by us will be made through such facilities, if we are a member, or, if
we are not a member, settlement may be made through our ordinary correspondent
who is a member.
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40
V.
We authorize you as Lead Managers to charge our account, as compensation
for your services in connection with this issue, including the purchase from the
Company and the management of the offering, $49.97 a share for each Share that
we have agreed to purchase pursuant to Section 2 of the Underwriting Agreement.
We authorize you to charge to our account (i) our International
Underwriting Percentage of all expenses incurred by you under the terms of this
Agreement or in connection with or attributable to the purchase, carrying and
sale of Shares pursuant to this Agreement (including all expenses, if any,
incurred for the account of the International Underwriters pursuant to the
Agreement Between U.S. and International Underwriters), and (ii) all transfer
taxes paid or payable on our behalf on purchases, sales or transfers made for
our account pursuant to this Agreement.
VI.
We authorize you to advance your own funds for our account, charging
interest rates prevailing from time to time, or to arrange loans for our account
for the purpose of carrying out the provisions of this Agreement or the
Agreement Between U.S. and International Underwriters and in connection
therewith to hold or pledge as security therefor all or any Shares which you may
be holding for our account under this Agreement.
Out of payment received by you for Shares sold for our account which have
been paid for by us, you will remit to us promptly an amount equal to the price
paid by us for such Shares.
Xxxxxx Xxxxxxx & Co. International Limited and Xxxxxx Xxxxxxx & Co.
Incorporated may each deliver to us or transfer to our account from time to time
against payment, for carrying purposes only, any Shares purchased by us or for
our account under this Agreement that it is holding for sale for our account but
that are not sold and paid for. We will transfer back to Xxxxxx Xxxxxxx & Co.
International Limited or Xxxxxx Xxxxxxx & Co. Incorporated against payment any
Shares so transferred to us for carrying purposes at such times as it may
demand.
VII.
This Agreement shall terminate 30 days from the date hereof, unless sooner
terminated by you, provided that you may in your discretion extend this
Agreement for a
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41
further period or periods not exceeding an aggregate of 30 days. You may at your
discretion on notice to us prior to the termination of this Agreement alter any
of the terms or conditions of offering determined pursuant to Article II hereof
or Article III of the Agreement Between U.S. and International Underwriters, or
terminate or suspend in whole or in part the effectiveness of Article III hereof
or paragraphs five through nine of Article IV thereof. No termination or
suspension pursuant to this paragraph shall affect your or Xxxxxx Xxxxxxx & Co.
Incorporated's authority under Article III to cover any short or close any long
position incurred under this Agreement prior to such termination or suspension.
Upon termination of this Agreement, or prior thereto at your discretion,
Xxxxxx Xxxxxxx & Co. International Limited shall deliver to us or transfer to
our account any Shares purchased by us from the Company or pursuant to the
Agreement Between U.S. and International Underwriters and held by Xxxxxx Xxxxxxx
& Co. International Limited for sale for our account to dealers or others but
not sold and paid for and any shares of Common Stock which are held by Xxxxxx
Xxxxxxx & Co. Incorporated for our account pursuant to Article III. As soon as
practicable after termination of this Agreement our account hereunder shall be
settled and paid. Xxxxxx Xxxxxxx & Co. International Limited may reserve from
distribution such amount as it deems advisable to cover possible additional
amounts due from us. Determination by Xxxxxx Xxxxxxx & Co. International Limited
of amounts to be paid to or by us shall be final and conclusive. Any of our
funds in Xxxxxx Xxxxxxx & Co. International Limited's hands may be held with its
general funds without accountability for interest.
Notwithstanding any settlement on the termination of this Agreement, each
International Underwriter agrees to pay its International Underwriting
Percentage of (i) all expenses incurred by you in investigating or defending
against any claim or proceeding which is asserted or instituted by any party
(including any governmental or regulatory body) other than an Underwriter
relating to the Registration Statement or the Prospectus (as defined in the
Underwriting Agreement) (or any amendment or supplement thereto) or any
preliminary prospectus and (ii) any liability, including attorneys' fees,
incurred by you in respect of any such claim or proceeding, whether such
liability shall be the result of a judgment or as a result of any settlement
agreed to by you, other than any such expense or liability as to which you
receive indemnity payments pursuant to the following paragraph, Article III of
the Agreement Between U.S. and International Underwriters or Section 8 of the
Underwriting Agreement.
We agree to indemnify and hold harmless each other Underwriter and each
person, if any, who controls any such Underwriter within the meaning of either
Section 15 of the Act or Section 20 of the U.S. Securities Exchange Act of 1934,
as amended, to the extent and upon the terms which we agree to indemnify and
hold harmless the Company, its directors, the officers of the Company who sign
the Registration Statement and any person controlling the Company as set forth
in the Underwriting Agreement.
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42
Our agreements contained in the second through fourth paragraphs of
Article II and this Article VII shall remain operative and in full force and
effect regardless of any termination of this Agreement or the occurrence of any
of the events described in clauses (i) through (iii) of the last paragraph of
Section 8 of the Underwriting Agreement.
VIII.
We have examined the prospectus included in the Registration Statement as
amended to date and we are familiar with the terms of the securities being
offered and the other terms of offering which are to be reflected in the
International Prospectus. In addition, we confirm that the information relating
to us which has been furnished to the Company for use therein is correct. You
are authorized, with the approval of counsel for the Underwriters, to approve on
our behalf the International Prospectus and any further amendments or
supplements to the Registration Statement or the International Prospectus.
We represent that our commitment to purchase Shares hereunder and under
the Agreement Between U.S. and International Underwriters will not result in a
violation of any financial responsibility requirements of any laws, rules or
regulations applicable to us, including applicable rules of any securities
exchange.
IX.
If the Underwriting Agreement is terminated as permitted by the terms
thereof, our obligations hereunder shall immediately terminate except that (i)
our obligations as set forth in the last paragraph of Article VII shall remain
in full force and effect, (ii) we shall remain liable for our International
Underwriting Percentage of all expenses and for any purchases or sales which may
have been made for our account pursuant to the provisions of Article III,
including any taxes on any such purchases or sales and (iii) such termination
shall not affect any obligation of any defaulting International Underwriter.
In the event that any International Underwriter shall default in its
obligations (i) pursuant to the second paragraph of Article II or the first
paragraph of Article III, (ii) to pay amounts owed by it pursuant to Article V
or (iii) pursuant to the third or fourth paragraph of Article VII or the first
paragraph of this Article IX, we will assume our proportionate share (determined
on the basis of the International Underwriting Percentages of the non-defaulting
International Underwriters) of such obligations, but no such assumption shall
affect any obligation of any defaulting International Underwriter.
If any one or more of the Underwriters shall fail or refuse to purchase
any Shares which it or they have agreed to purchase under the Underwriting
Agreement, we agree, in the proportion which the number of Firm Shares set forth
opposite our name in
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Schedule II to the Underwriting Agreement bears to the aggregate number of Firm
Shares set forth opposite the names of all non-defaulting Underwriters, or in
such other proportions as you may specify, to purchase the Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase;
provided that, in no event shall the Shares to be purchased by any International
Underwriter be increased pursuant to this Article IX to an amount in excess of
the maximum number of Shares which such International Underwriter has agreed to
purchase pursuant to the Underwriting Agreement. Xxxxxx Xxxxxxx & Co.
International Limited is authorized to arrange for the purchase by others
(including itself and any other International Underwriter) of any Shares not
purchased by any defaulting International Underwriter or by the other
International Underwriters as provided in this paragraph and in Section 9 of the
Underwriting Agreement. If such arrangements are made, the respective numbers of
Shares to be purchased by the remaining International Underwriters and such
other person or persons, if any, shall be taken as the basis for all rights and
obligations hereunder. Any action taken under this paragraph shall not relieve
any defaulting International Underwriter from liability in respect of any
default of such International Underwriter under the Underwriting Agreement or
this Agreement.
Nothing herein contained shall constitute us partners with you or with the
other Underwriters and the obligations of ourselves and of each of the other
Underwriters are several and not joint. If for United States federal income tax
purposes the International Underwriters shall be deemed to constitute a
partnership, each International Underwriter elects to be excluded from the
application of Subchapter K, Chapter 1, Subtitle A, of the United States
Internal Revenue Code, as amended.
You shall be under no liability to us for any act or omission except in
respect of obligations expressly assumed by you herein.
This Agreement is being executed by us and delivered to you in duplicate.
Upon your confirmation hereof and agreements in identical form with each of the
other Underwriters, this Agreement shall constitute a valid and binding contract
between us.
Your authority hereunder and under the Underwriting Agreement and the
Agreement Between U.S. and International Underwriters may be exercised by Xxxxxx
Xxxxxxx & Co. International Limited, Xxxxxxx Xxxxx International, Xxxxxx Xxxxxxx
& Co., Inc. and Xxxxx Xxxxxx Inc. jointly or by Xxxxxx Xxxxxxx & Co.
International Limited alone. The authority of the U.S. Representatives hereunder
and under the Agreement Between U.S. and International Underwriters may be
exercised by Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx Xxxxx, Xxxxxx Xxxxxx &
Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co., Inc. and Xxxxx Xxxxxx Inc. either
jointly or alone.
This Agreement may be executed in two or more counterparts which together
shall constitute one and the same instrument. If this Agreement is executed by
or on
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44
behalf of any party hereto by a person acting under the power of attorney given
him by such party, such person hereby states that at the time of execution
hereof he has no notice of revocation of the power of attorney by which he has
executed this Agreement as such attorney.
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45
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York and United States federal law.
Very truly yours,
XXXXXX XXXXXXX & CO. INTERNATIONAL
LIMITED
By /s/ Xxxxx X. Xxxxxxxxxx
------------------------------------------
Xxxxx X. Xxxxxxxxxx
Principal
Attorney-in-fact for each of the several
International Underwriters named in
Schedule II to the Underwriting Agreement
Confirmed as of the date hereof
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
XXXXXXX XXXXX INTERNATIONAL
XXXXXX XXXXXXX & CO., INC.
XXXXX XXXXXX INC.
By Xxxxxx Xxxxxxx & Co. International Limited
By /s/ Xxxxx X. Xxxxxxxxxx
------------------------------------------
Xxxxx X. Xxxxxxxxxx
Principal
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EXHIBIT B
10,000,000 Shares
K N ENERGY, INC.
Common Stock, Par Value $5.00 Per Share
AGREEMENT BETWEEN U.S. AND INTERNATIONAL UNDERWRITERS
March 4, 1998
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March 4, 1998
To each of the Underwriters named in
Schedules I and II to the Underwriting
Agreement referred to below.
Dear Sirs:
We understand that K N Energy, Inc. (the "COMPANY") has entered into an
underwriting agreement (the "UNDERWRITING AGREEMENT") with Xxxxxx Xxxxxxx & Co.
Incorporated, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx
& Co., Inc. and Xxxxx Xxxxxx Inc. acting as representatives (the "U.S.
REPRESENTATIVES") of the U.S. underwriters named in Schedule I thereto (the
"U.S. UNDERWRITERS") and Xxxxxx Xxxxxxx & Co. International Limited, Xxxxxxx
Xxxxx International, Xxxxxx Xxxxxxx & Co., Inc. and Xxxxx Xxxxxx Inc. as
representatives (the "INTERNATIONAL REPRESENTATIVES") of the international
underwriters named in Schedule II thereto (the "INTERNATIONAL UNDERWRITERS" and,
together with the U.S. Underwriters, the "UNDERWRITERS"), pursuant to which the
several Underwriters have agreed to purchase from the Company an aggregate of
11,000,000 shares of common stock, par value $5.00 per share of the Company
("COMMON STOCK"). In addition, the Company has granted the U.S. Underwriters the
option to purchase up to 1,650,000 additional shares of Common Stock (the
"ADDITIONAL SHARES"). All shares of Common Stock to be purchased by the U.S.
Underwriters and the International Underwriters under the Underwriting
Agreement, including any Additional Shares, are herein called the "U.S. SHARES"
and the "INTERNATIONAL SHARES," respectively. The U.S. Shares and the
International Shares are collectively referred to herein as the "SHARES."
I.
The U.S. Underwriters, acting through the U.S. Representatives, and the
International Underwriters, acting through the International Representatives,
agree that, in order to provide an orderly marketing effort for the offering,
they will consult with each other as to the availability of the Shares for sale
to the public, from time to time until the earlier of (a) notice from the U.S.
Representatives to the U.S. Underwriters of the completion of the distribution
of the U.S. Shares and (b) notice from the International Representatives to the
International Underwriters of the completion of the distribution of the
International Shares. From time to time as mutually agreed among the U.S.
Underwriters and the International Underwriters, acting through Xxxxxx Xxxxxxx &
Co. Incorporated and Xxxxxx Xxxxxxx & Co. International Limited, respectively,
the
48
Underwriters may purchase and sell among each other such number of Shares to be
purchased pursuant to the Underwriting Agreement as may be so mutually agreed.
The price and currency of settlement of any Shares so purchased or sold
shall be the public offering price, in United States dollars, less an amount not
greater than the selling concession. Settlement with respect to any Shares
transferred hereunder prior to the Closing Date (as defined in the Underwriting
Agreement) shall be made on the Closing Date, and in the case of purchases and
sales made thereafter, as promptly as practicable but in no event later than
three business days after the transfer date. Certificates representing the
Shares so purchased shall be delivered on the respective settlement dates. The
liability of the Underwriters under the Underwriting Agreement for payment of
the purchase price of the Shares purchased thereunder shall not be affected by
the provisions of this Agreement.
The obligations of each U.S. Underwriter in respect of any purchase or
sale of Shares under this Article I by the U.S. Underwriters shall be pro rata
in accordance with the proportion of the total number of U.S. Shares that such
U.S. Underwriter is obligated to purchase under the Underwriting Agreement. The
obligations of each International Underwriter in respect of any purchase or sale
of Shares under this Article I by the International Underwriters shall be pro
rata in accordance with the proportion of the total number of International
Shares that such International Underwriter is obligated to purchase under the
Underwriting Agreement.
II.
Each of the Underwriters represents that it is a member in good standing
of the U.S. National Association of Securities Dealers, Inc. (the "NASD") or
that it is a foreign bank or dealer not eligible for membership in the NASD. In
making sales of Shares, if it is such a member, such Underwriter agrees to
comply with all applicable rules of the NASD, including, without limitation, the
NASD's Interpretation with Respect to Free-Riding and Withholding (IM-2110-1)
and NASD Rule 2740, or, if it is such a foreign bank or dealer, such Underwriter
agrees to comply with such Interpretation and NASD Rules 2730, 2740 and 2750 as
though it were such a member and NASD Rule 2420 as it applies to a non-member
broker or dealer in a foreign country.
III.
Each U.S. Underwriter represents and agrees that, except for (x) sales
between the U.S. Underwriters and the International Underwriters pursuant to
Article I of this Agreement and (y) stabilization transactions, contemplated in
Article IV of this Agreement, conducted through the U.S. Representatives as part
of the distribution of the Shares, (a) it is not purchasing any of the U.S.
Shares for the account of anyone other than a United States or Canadian Person
and (b) it has not offered or sold, and will not
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offer or sell, directly or indirectly, any of the U.S. Shares or distribute any
prospectus relating to the U.S. Shares outside the United States or Canada or to
anyone other than a United States or Canadian Person, and any dealer to whom it
may sell any of the U.S. Shares will represent that it is not purchasing any of
the U.S. Shares for the account of anyone other than a United States or Canadian
Person and will agree that it will not offer or resell such U.S. Shares directly
or indirectly outside the United States or Canada or to anyone other than a
United States or Canadian Person or to any other dealer who does not so
represent and agree.
Each International Underwriter represents and agrees that, except for (x)
sales between the U.S. Underwriters and the International Underwriters pursuant
to Article I of this Agreement and (y) stabilization transactions, contemplated
in Article IV of this Agreement, conducted through the U.S. Representatives as
part of the distribution of the Shares, (a) it is not purchasing any of the
International Shares for the account of any United States or Canadian Person and
(b) it has not offered or sold, and will not offer or sell, directly or
indirectly, any of the International Shares or distribute any prospectus
relating to the International Shares in the United States or Canada or to any
United States or Canadian Person, and any dealer to whom it may sell any of the
International Shares will represent that it is not purchasing any of the
International Shares for the account of any United States or Canadian Person and
will agree that it will not offer or resell such International Shares directly
or indirectly in the United States or Canada or to any United States or Canadian
Person or to any other dealer who does not so represent and agree.
With respect to any Underwriter that is a U.S. Underwriter and an
International Underwriter, the foregoing representations and agreements (i) made
by it in its capacity as a U.S. Underwriter shall apply only to it in its
capacity as a U.S. Underwriter and (ii) made by it in its capacity as an
International Underwriter shall apply only to it in its capacity as an
International Underwriter. In addition, notwithstanding the foregoing
representations and agreements, if an Underwriter (including its affiliates) is
both a U.S. Underwriter and an International Underwriter, then the U.S.
Underwriter and its corresponding International Underwriter may, with the
consent of Xxxxxx Xxxxxxx & Co. Incorporated, transfer between themselves at
cost any Shares allocated to them for direct sale by the U.S. Representatives or
the International Representatives so long as any Shares so transferred are
treated as U.S. Shares while held by the U.S. Underwriter and International
Shares while held by the International Underwriter for purposes of the foregoing
representations and agreements.
"UNITED STATES OR CANADIAN PERSON" shall mean any national or resident of
the United States or Canada, or any corporation, pension, profit-sharing or
other trust or other entity organized under the laws of the United States or
Canada or of any political subdivision thereof (other than a branch located
outside of the United States and Canada of any United States or Canadian
Person), and shall include any United States or Canadian branch of a person who
is otherwise not a United States or Canadian Person.
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"UNITED STATES" shall mean the United States of America, its territories, its
possessions and all areas subject to its jurisdiction.
The agreements of the Underwriters set forth in the first and second
paragraphs of this Article III shall terminate upon the earlier of (a) the
mutual agreement of the U.S. Representatives and the International
Representatives and (b) 30 days after the date hereof, unless the U.S.
Representatives or the International Representatives shall have given notice to
the other to the effect that the distribution of the Shares by the U.S.
Underwriters or the International Underwriters, as the case may be, has not yet
been completed. If such notice is given, the agreements set forth in such
preceding paragraphs shall survive until the earlier of (x) the mutual agreement
referred to in the preceding sentence and (y) 30 days after the date of any such
notice.
Each U.S. Underwriter represents that it has not offered or sold, and
agrees not to offer or sell, any Shares, directly or indirectly, in any province
or territory of Canada or to, or for the benefit of, any resident of any
province or territory of Canada in contravention of the securities laws thereof
and, without limiting the generality of the foregoing, represents that any offer
of Shares in Canada will be made only pursuant to an exemption from the
requirement to file a prospectus in the province or territory of Canada in which
such offer is made. Each U.S. Underwriter further agrees to send to any dealer
who purchases from it any of the Shares a notice stating in substance that, by
purchasing such Shares, such dealer represents and agrees that it has not
offered or sold, and will not offer or sell, directly or indirectly, any of such
Shares in any province or territory of Canada or to, or for the benefit of, any
resident of any province or territory of Canada in contravention of the
securities laws thereof and that any offer of Shares in Canada will be made only
pursuant to an exemption from the requirement to file a prospectus in the
province or territory of Canada in which such offer is made, and that such
dealer will deliver to any other dealer to whom it sells any of such Shares a
notice containing substantially the same statement as is contained in this
sentence.
The Underwriters understand that no action has been or will be taken in
any jurisdiction by the Underwriters or the Company that would permit a public
offering of the Shares, or possession or distribution of the Prospectus (as
defined in the Underwriting Agreement), in preliminary or final form, in any
jurisdiction where, or in any circumstances in which, action for that purpose is
required, other than the United States.
Each International Underwriter agrees that it will comply with all
applicable laws and regulations, and make or obtain all necessary filings,
consents or approvals, in each jurisdiction in which it purchases, offers, sells
or delivers Shares (including, without limitation, any applicable requirements
relating to the delivery of the international prospectus, in preliminary or
final form), in each case at its own expense. In connection with sales of and
offers to sell Shares made by it, each International Underwriter will either
furnish to each person to whom any such sale or offer is made a copy of the then
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51
current international prospectus (in preliminary or final form and as then
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or inform such person that such international prospectus,
in preliminary or final form, will be made available upon request, and will keep
an accurate record of the names and addresses of all persons to whom it gives
copies of the registration statement relating to the offering of the Shares, the
international prospectus, in preliminary or final form, or any amendment or
supplement thereto, and, when furnished with any subsequent amendment to such
registration statement, any subsequent prospectus or any medium outlining
changes in the registration statement or any prospectus, will upon request of
the International Representatives, promptly forward copies thereof to such
persons or inform such persons that such amendment, subsequent prospectus or
other medium will be made available upon request.
Each International Underwriter further represents that it has not offered
or sold, and agrees not to offer or sell, directly or indirectly, in Japan or to
or for the account of any resident thereof, any of the Shares acquired in
connection with the distribution contemplated hereby, except for offers or sales
to Japanese International Underwriters or dealers and except pursuant to any
exemption from the registration requirements of the Securities and Exchange Law
and otherwise in compliance with applicable provisions of Japanese law. Each
International Underwriter further agrees to send to any dealer who purchases
from it any of the Shares a notice stating in substance that, by purchasing such
Shares, such dealer represents and agrees that it has not offered or sold, and
will not offer or sell, any of such Shares, directly or indirectly, in Japan or
to or for the account of any resident thereof except for offers or sales to
Japanese International Underwriters or dealers and except pursuant to any
exemption from the registration requirements of the Securities and Exchange Law
and other relevant laws and regulations of Japan, and that such dealer will send
to any other dealer to whom it sells any of such Shares a notice containing
substantially the same statement as is contained in this sentence.
Each International Underwriter further represents and agrees that (i) it
has not offered or sold and, during the period of six months from the date
hereof, will not offer or sell, any Shares to persons in the United Kingdom
except to persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the purposes of
their businesses or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the meaning of
the Public Offers of Securities Regulations 1995 (the "REGULATIONS"); (ii) it
has complied and will comply with all applicable provisions of the Financial
Services Xxx 0000 and the Regulations with respect to anything done by it in
relation to the Shares in, from or otherwise involving the United Kingdom; and
(iii) it has only issued or passed on and will only issue or pass on to any
person in the United Kingdom any document received by it in connection with the
issue of the Shares if that person is of a kind described in Article 11(3) of
the Financial Services Xxx 0000
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(Investment Advertisements) (Exemptions) Order 1996 or is a person to whom such
document may otherwise lawfully be issued or passed on.
Each International Underwriter agrees to indemnify and hold harmless each
Underwriter and each person controlling any Underwriter from and against any and
all losses, claims, damages and liabilities (including fees and disbursements of
counsel) arising from any breach by it of any of the provisions of paragraphs
eight, nine and ten of this Article III.
IV.
The overall direction and planning of the stabilization transactions
contemplated herein shall be the responsibility of the U.S. Representatives and
the International Representatives, which will consult with one another on a
continuous basis so that such stabilization transactions shall be conducted in
accordance with such direction and planning as is mutually agreed upon.
All stabilization transactions shall be conducted only by Xxxxxx Xxxxxxx &
Co. Incorporated and shall be conducted in compliance with any applicable laws
and regulations. Xxxxxx Xxxxxxx & Co. Incorporated agrees to notify the
International Representatives of the date of termination of stabilization. Each
Underwriter agrees to file with Xxxxxx Xxxxxxx & Co. Incorporated any reports
required of such Underwriter pursuant to Rule 17a-2 under the U.S. Securities
Exchange Act of 1934 and authorizes Xxxxxx Xxxxxxx & Co. Incorporated to file
with the U.S. Securities and Exchange Commission any reports required by such
Rule on behalf of such Underwriter.
The International Primary Market Association (IPMA) limits will not be
complied with in connection with stabilization losses and expenses. All
stabilization transactions shall be for the respective accounts of the several
Underwriters and shall be allocated between the U.S. Underwriters and the
International Underwriters in the respective proportions that the number of U.S.
Shares and International Shares purchased pursuant to the Underwriting Agreement
bears to the total number of Shares purchased. In no event shall the net
commitment of any Underwriter, for either long or short account, resulting from
such stabilization transactions and from the over-allotments referred to in
Article V, exceed 15% of the total number of Shares that such Underwriter is
obligated to purchase under the Underwriting Agreement; provided that the net
commitment of any Underwriter for short account shall be calculated (x) in the
case of any U.S. Underwriter, after giving effect to the purchase of (i) any
Shares that the U.S. Representatives have agreed to purchase for the account of
such U.S. Underwriter pursuant to Article I of this Agreement and (ii) the
maximum number of Additional Shares that such U.S. Underwriter is entitled to
purchase under the Underwriting Agreement and (y) in the case of any
International Underwriter, after giving effect to the purchase of any Shares
that the
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53
International Representatives have agreed to purchase for the account of such
International Underwriter pursuant to Article I of this Agreement.
Each U.S. Underwriter represents that it has not offered or sold, and
agrees that it will not offer or sell, directly or indirectly, Shares to any
person at less than the public offering price, other than to (i) the
International Underwriters pursuant to Article I hereof or (ii) other U.S.
Underwriters or to dealers who have entered into the Master Dealer Agreement
with Xxxxxx Xxxxxxx & Co. Incorporated and who have received a pricing wire from
the U.S. Representatives with respect to this offering that, among other things,
sets forth such dealer's agreement that it is not purchasing Shares for the
account of any persons other than United States or Canadian Persons and that it
will not offer or resell Shares outside the United States and Canada. Such sales
to U.S. dealers and other U.S. Underwriters shall be made in conformity with the
provisions of Article II and at a price that is not below the public offering
price less the maximum permissible reallowance to be specified in the
Prospectus. Each U.S. Underwriter agrees that prior to offering Shares to any
dealer at the public offering price less the reallowance, it will either
ascertain that such dealer has entered into such Master Dealer Agreement and
received such a pricing wire or make arrangements to ensure that such dealer
will enter into such Master Dealer Agreement and receive such a pricing wire.
Each International Underwriter represents that it has not offered or sold
and agrees that it will not offer or sell, directly or indirectly, Shares to any
person at less than the public offering price, other than to (i) the U.S.
Underwriters pursuant to Article I hereof or (ii) other International
Underwriters or to dealers who have entered into International Dealer Agreements
(the "INTERNATIONAL DEALERS") with the International Representatives in the form
of Exhibit C to the Agreement Among International Underwriters. Such sales to
International Dealers and other International Underwriters shall be made in
conformity with the provisions of Article II and at a price that is not below
the public offering price less the maximum permissible reallowance to be
specified in the Prospectus. Each International Underwriter agrees that prior to
offering Shares to any dealer at the public offering price less the reallowance,
it will either ascertain that such dealer has entered into such an International
Dealer Agreement or make arrangements to ensure that such dealer will enter into
an International Dealer Agreement.
The agreements of the Underwriters set forth in the foregoing two
paragraphs shall terminate upon the earlier of (a) the mutual agreement of the
U.S. Representatives and the International Representatives and (b) 30 days after
the date hereof, unless the U.S. Representatives or the International
Representatives shall have given notice to the other to the effect that the
distribution of the Shares by the U.S. Underwriters or the International
Underwriters, as the case may be, has not yet been completed. If such notice is
given, the agreements set forth in such preceding paragraphs shall survive until
the earlier of (x) the mutual agreement referred to in the preceding sentence
and (y) 30 days after the date of any such notice.
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Each Underwriter agrees that it will not, without the advance approval of
Xxxxxx Xxxxxxx & Co. Incorporated, for its own account or the account of a
customer, offer, bid for, buy, sell, deal, trade in or attempt to induce any
person to bid for or buy any Covered Security, except (a) as provided in the
Agreement Among International Underwriters, the Master Agreement Among
Underwriters, this Agreement, the Underwriting Agreement, the Master Dealer
Agreement or the International Dealer Agreement, (b) in brokerage transactions
on unsolicited orders which have not resulted from activities on its part in
connection with the solicitation of purchases and which are executed by it in
the ordinary course of its brokerage business, (c) in market making transactions
on Nasdaq or any similar market or quotation system executed by it in the
ordinary course of its business so long as its bids and purchases are made
consistent with the pricing restrictions set forth in Rule 103 of Regulation M
of the U.S. Securities and Exchange Commission ("REGULATION M") and the volumes
of such transactions are consistent with its past practice as a market maker,
(d) in basket transactions that meet the standards set forth in Rule 101(b)(6)
of Regulation M, (e) that it may convert, exchange or exercise any security
owned by it prior to the commencement of this restriction and that it may sell
any security obtained upon any such conversion, exchange or exercise, (f) that
it may deliver securities owned by it upon the exercise of any option written by
it as permitted by the provisions set forth herein, (g) that on or after the
date of the initial public offering of the Shares, it may execute covered
writing transactions for the accounts of customers in options to acquire Common
Stock, when such transactions are covered by Shares and (h) that it may engage
in principal purchases or sales with the intent of offsetting the market risk of
principal positions in over-the-counter derivatives on solicited orders that
were executed by it prior to the commencement of this restriction, and on
unsolicited orders that were executed by it at any time, so long as such orders
were executed by it in the ordinary course of its principal over-the-counter
derivatives business. "COVERED SECURITY" means (a) the Common Stock and (b) any
securities convertible into or exercisable or exchangeable for the Common Stock.
An opening uncovered writing transaction in options to acquire Common
Stock for an Underwriter's account or for the account of a customer shall be
deemed, for purposes of this Article IV, to be a sale of Common Stock which is
not unsolicited. The term "OPENING UNCOVERED WRITING TRANSACTION IN OPTIONS TO
ACQUIRE" as used above means a transaction in which the seller intends to become
a writer of an option to purchase Common Stock which he does not own. An opening
uncovered purchase transaction in options to sell Common Stock for an
Underwriter's account or for the account of a customer shall be deemed, for
purposes of this paragraph, to be a sale of Common Stock which is not
unsolicited. The term "OPENING UNCOVERED PURCHASE TRANSACTION IN OPTIONS TO
SELL" as used above means a transaction where the purchaser intends to become an
owner of an option to sell Common Stock which he does not own.
Each Underwriter represents that it has not participated, since it was
invited to participate in the offering of the Shares, in any transaction
prohibited by this Article IV
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and that it has at all times complied and agrees that it will at all times
comply with the provisions of Regulation M applicable to this offering.
V.
The overall direction and planning of any over-allotments to be made by
the Underwriters in arranging for sales of Shares, and the related transactions
required to cover such over-allotments, shall be the responsibility of the U.S.
Representatives. All profits and losses arising from such over-allotments
(excluding the excess, if any, of (i) the public selling price of any Additional
Shares and any Shares purchased pursuant to Article I of this Agreement over
(ii) the cost of such Additional Shares and such other Shares to the
Underwriters making such sales) shall be for the respective accounts of the
several Underwriters and shall be allocated between the U.S. Underwriters and
the International Underwriters in the respective proportions that the number of
U.S. Shares and International Shares purchased pursuant to the Underwriting
Agreement bears to the total number of Shares purchased.
VI.
Each of the Underwriters agrees that the expenses incurred in connection
with or attributable to the purchase, carrying or sale of the Shares, including
the fees and disbursements of Xxxxx Xxxx & Xxxxxxxx (U.S. counsel to the
Underwriters), shall be for the respective accounts of the several Underwriters
and shall be allocated between the U.S. Underwriters and the International
Underwriters in the respective proportions that the number of U.S. Shares and
International Shares purchased pursuant to the Underwriting Agreement bears to
the total number of Shares purchased.
VII.
Changes in the offering price and in the concessions and reallowances to
dealers will be made only upon the mutual agreement of the Underwriters during
the period referred to in the first sentence of Article I hereof.
VIII.
The Representatives will keep one another fully informed of the progress
of the offering of the Shares.
The agreements of the Underwriters contained in Article II, the sixth
through eleventh paragraphs of Article III, the last paragraph of Article IV,
Article V and Article VI shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any termination of the
Underwriting Agreement, (iii) any investigation made by or on behalf of any
Underwriter or any person controlling any
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Underwriter or by or on behalf of the Company, its officers or directors or any
other person controlling the Company and (iv) acceptance of and payment for any
Shares.
IX.
This Agreement may be signed in counterparts, which together shall
constitute one and the same instrument.
This Agreement shall be governed and construed in all respects in
accordance with the laws of the State of New York and United States federal law.
IN WITNESS WHEREOF, this Agreement has been executed as of the date and
year first above written by the undersigned for themselves and for the
Underwriters as set forth above.
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXX XXXXXXX & CO., INC.
XXXXX XXXXXX INC.
Acting severally on behalf of
themselves and the several U.S.
Underwriters named in Schedule I
to the Underwriting Agreement
referred to herein.
By XXXXXX XXXXXXX & CO.
INCORPORATED
By /s/ Xxxxx X. Xxxxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxxxx
Principal
XXXXXX XXXXXXX & CO. INTERNATIONAL
LIMITED
XXXXXXX XXXXX INTERNATIONAL
XXXXXX XXXXXXX & CO., INC.
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XXXXX XXXXXX INC.
Acting severally on behalf of
themselves and the several
International Underwriters
named in Schedule II to the
Underwriting Agreement
referred to herein.
By XXXXXX XXXXXXX & CO. INTERNATIONAL
LIMITED
By /s/ Xxxxx X. Xxxxxxxxxx
-----------------------
Xxxxx X. Xxxxxxxxxx
Principal
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EXHIBIT C
10,000,000 Shares
K N ENERGY, INC.
Common Stock, Par Value $5.00 Per Xxxxx
XXXXXXXXXXXXX DEALER AGREEMENT
March 4, 1998
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Xxxxxx Xxxxxxx & Co. International Limited
Xxxxxxx Xxxxx International
Xxxxxx Xxxxxxx & Co., Inc.
Xxxxx Xxxxxx Inc.
x/x Xxxxxx Xxxxxxx & Xx. Xxxxxxxxxxxxx Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs:
We understand that K N Energy, Inc., a Kansas corporation (the "COMPANY"),
proposes to issue and sell to the several Underwriters (as defined below) an
aggregate of 1,500,000 shares (the "FIRM SHARES") of its common stock, par value
$5.00 per share ("COMMON STOCK") pursuant to an underwriting agreement (the
"UNDERWRITING AGREEMENT") with you as representatives (the "INTERNATIONAL
REPRESENTATIVES") of the international underwriters named in Schedule II thereto
(the "INTERNATIONAL UNDERWRITERS"), and with Xxxxxx Xxxxxxx & Co. Incorporated,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co., Inc.
and Xxxxx Xxxxxx Inc. as representatives (the "U.S. REPRESENTATIVES") of the
U.S. underwriters named in Schedule I thereto (the "U.S. UNDERWRITERS"). The
Firm Shares to be sold to the several U.S. Underwriters and to the several
International Underwriters shall hereinafter be referred to, respectively, as
the U.S. Firm Shares and the International Shares. The International
Underwriters and the U.S. Underwriters are hereinafter collectively referred to
as the Underwriters.
In addition, the several U.S. Underwriters will have an option to purchase
from the Company an additional 1,650,000 shares (the "ADDITIONAL SHARES") to
provide for over-allotments. The term "U.S. SHARES" shall mean the U.S. Firm
Shares and the Additional Shares. The U.S. Shares and the International Shares
are hereinafter collectively referred to as the "SHARES".
We acknowledge receipt of the Prospectus dated March 4, 1998 (hereinafter
called the international prospectus) relating to the offering of the
International Shares.
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We understand that the International Underwriters are severally offering,
through you, certain of the Shares for sale to certain dealers at the offering
price of U.S. $_____ less a concession not in excess of U.S. $.__ under the
offering price, and that any International Underwriter may allow, and dealers
may reallow, a concession not in excess of U.S. $_____ under the offering price
to other International Underwriters or to other dealers who enter into an
agreement in this form.
We hereby agree with you as follows with respect to any purchase of Shares
from you or from any other International Underwriter or from any dealer at a
concession from the offering price.
In purchasing Shares, we will rely only on the international prospectus
and on no other statements whatsoever, written or oral.
I.
We understand that no action has been or will be taken in any jurisdiction
by the International Underwriters or the Company that would permit a public
offering of the Shares, or possession or distribution of the international
prospectus, in preliminary or final form, in any jurisdiction where, or in any
circumstances in which, action for that purpose is required, other than the
United States. We agree that we will comply with all applicable laws and
regulations, and make or obtain all necessary filings, consents or approvals, in
each jurisdiction in which we purchase, offer, sell or deliver Shares
(including, without limitation, any applicable requirements relating to the
delivery of the international prospectus, in preliminary or final form), in each
case at our own expense. In connection with sales of and offers to sell Shares
made by us, we will either furnish to each person to whom any such sale or offer
is made a copy of the then current international prospectus (in preliminary or
final form and as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or inform such person that
such international prospectus will be made available upon request and we will
keep an accurate record of the names and addresses of all persons to whom we
give copies of the registration statement relating to the offering of the
Shares, the international prospectus, in preliminary or final form, or any
amendment or supplement thereto, and, when furnished with any subsequent
amendment to such registration statement, any subsequent prospectus or any
medium outlining changes in the registration statement or any prospectus, we
will upon request of the International Representatives, promptly forward copies
thereof to such persons or inform such persons that such amendment, subsequent
prospectus or other medium will be made available upon request.
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We will not give any information or make any representation other than as
contained in the international prospectus, or act for the Company, any
International Underwriter or you.
We represent and agree that, except for (x) sales between the U.S.
Underwriters and the International Underwriters pursuant to Article I of the
Agreement Between U.S. and International Underwriters of even date herewith
(hereinafter called the Agreement Between U.S. and International Underwriters)
and (y) stabilization transactions contemplated in Article IV of the Agreement
Between U.S. and International Underwriters conducted through the U.S.
Representatives as part of the distribution of the Shares, (a) we are not
purchasing and have not purchased and will not purchase any Shares for the
account of any United States or Canadian Person and (b) we have not offered or
sold, and will not offer or sell, directly or indirectly, any Shares or
distribute any prospectus relating to the Shares, in the United States or Canada
or to any United States or Canadian Person and any dealer to whom we may sell
any Shares will represent that it is not purchasing any Shares for the account
of any United States or Canadian Person and will agree that it will not offer or
resell such Shares directly or indirectly in the United States or Canada or to
any United States or Canadian Person or to any other dealer who does not so
represent and agree. "UNITED STATES OR CANADIAN PERSON" shall mean any national
or resident of the United States or Canada, or any corporation, pension,
profit-sharing or other trust or other entity organized under the laws of the
United States or Canada or of any political subdivision thereof (other than a
branch located outside the United States and Canada of any United States or
Canadian Person), and shall include any United States or Canadian branch of a
person who is otherwise not a United States or Canadian Person. "UNITED STATES"
shall mean the United States of America, its territories, its possessions and
all areas subject to its jurisdiction. Our agreement set forth in this paragraph
shall terminate upon the earlier of (a) notice from you to such effect and (b)
30 days after the date of the initial offering of the Shares, unless you have
given notice that the distribution of the Shares has not yet been completed. If
such latter notice is given, the agreement set forth in this paragraph shall
survive until the earlier of (x) the notice of termination referred to in (a)
above and (y) 30 days after the date of any notice that the distribution of the
Shares has not yet been completed.
We further represent that we have not offered or sold, and agree not to
offer or sell, directly or indirectly, in Japan or to or for the account of any
resident thereof, any of the Shares acquired in connection with the distribution
contemplated hereby, except for offers or sales to Japanese International
Underwriters or dealers and except pursuant to any exemption from the
registration requirements of the Securities and Exchange Law and otherwise in
compliance with applicable provisions of Japanese law. We further agree to send
to any dealer who purchases from us any of such Shares a notice stating in
substance that, by purchasing such Shares, such dealer represents and agrees
that it has not offered or sold, and will not offer or sell, any of such Shares,
directly or indirectly, in
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Xxxxx or to or for the account of any resident thereof, except for offers or
sales to Japanese International Underwriters or dealers and except pursuant to
any exemption from the registration requirements of the Securities and Exchange
Law and otherwise in compliance with applicable provisions of Japanese law, and
that such dealer will send to any other dealer to whom it sells any of such
Shares a notice containing substantially the same statement as is contained in
this sentence.
We further represent and agree that (i) we have not offered or sold and,
during the period of six months from the date hereof, will not offer or sell,
any Shares to persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995 (the "REGULATIONS"); (ii) we have complied
and will comply with all applicable provisions of the Financial Services Xxx
0000 and the Regulations with respect to anything done by us in relation to the
Shares in, from or otherwise involving the United Kingdom; and (iii) we have
only issued or passed on and will only issue or pass on to any person in the
United Kingdom any document received by us in connection with the offering of
the Shares to a person who is of a kind described in Article 11(3) of the
Financial Services Xxx 0000 (Investment Advertisements) (Exemptions) Order 1996
or is a person to whom such document may otherwise lawfully be issued or passed
on.
We represent that we are a foreign bank or dealer not eligible for
membership in the U.S. National Association of Securities Dealers, Inc.
(hereinafter called the NASD), and we agree not to offer to sell or sell any
Shares in, or to persons who are nationals or residents of, the United States,
except for offers and Shares referred to in clause (x) of the third paragraph of
this Article I. In making sales of Shares, we agree to comply with the NASD's
Interpretation with Respect to Free-Riding and Withholding (IM-2110-1) and NASD
Rules 2730, 2740 and 2750 as though we were a member in good standing of the
NASD and NASD Rule 2420 as it applies to a non-member broker or dealer in a
foreign country.
We agree that we will not, during the period continuing until the
International Representatives shall have notified us of the completion of the
distribution of the Shares, for our own account or the account of a customer,
offer, bid for, buy, sell, deal, trade in or attempt to induce any person to bid
for or buy any Covered Security, except (a) as provided in the Agreement Among
International Underwriters, the Xxxxxx Xxxxxxx & Co. Incorporated Master
Agreement Among Underwriters, the Agreement between U.S. and International
Underwriters, this Agreement, the Xxxxxx Xxxxxxx & Co. Master Dealer Agreement
or the Underwriting Agreement, (b) in brokerage transactions on unsolicited
orders which have not resulted from activities on our part in connection with
the solicitation of purchases and which are executed by us in the ordinary
course of our
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brokerage business, (c) in market making transactions on Nasdaq or any similar
market or quotation system executed by us in the ordinary course of our business
so long as our bids and purchases are made consistent with the pricing
restrictions set forth in Rule 103 of Regulation M of the U.S. Securities and
Exchange Commission ("REGULATION M") and the volumes of such transactions are
consistent with our past practice as a market maker, (d) in basket transactions
that meet the standards set forth in Rule 101(b)(6) of Regulation M, (e) that we
may convert, exchange or exercise any security owned by us prior to the
commencement of this restriction and that we may sell any security obtained upon
any such conversion, exchange or exercise, (f) that we may deliver securities
owned by us upon the exercise of any option written by us as permitted by the
provisions set forth herein, (g) that on or after the date of the initial public
offering of the Shares, we may execute covered writing transactions for the
accounts of customers in options to acquire Common Stock, when such transactions
are covered by Shares and (h) that we may engage in principal purchases or sales
with the intent of offsetting the market risk of principal positions in
over-the-counter derivatives on solicited orders that were executed by us prior
to the commencement of this restriction, and on unsolicited orders that were
executed by us at any time, so long as such orders were executed by us in the
ordinary course of our principal over-the-counter derivatives business. "COVERED
SECURITY" means (a) the Common Stock and (b) any securities convertible into or
exercisable or exchangeable for the Common Stock.
An opening uncovered writing transaction in options to acquire Common
Stock for our account or for the account of a customer shall be deemed, for
purposes of this Article I, to be a sale of Common Stock which is not
unsolicited. The term "OPENING UNCOVERED WRITING TRANSACTION IN OPTIONS TO
ACQUIRE" as used above means a transaction where the seller intends to become a
writer of an option to purchase any Common Stock which he does not own. An
opening uncovered purchase transaction in options to sell Common Stock for our
account or for the account of a customer shall be deemed, for purposes of this
paragraph, to be a sale of Common Stock which is not unsolicited. The term
"OPENING UNCOVERED PURCHASE TRANSACTION IN OPTIONS TO SELL" as used above means
a transaction where the purchaser intends to become an owner of an option to
sell Common Stock which he does not own.
We represent that we have not participated, since we were invited to
participate in the offering of the Shares, in any transaction prohibited by this
Article I and that we have at all times complied and agree that we will at all
times comply with the provisions of Regulation M applicable to this offering.
We agree to indemnify and hold harmless the Company, each Underwriter and
each person controlling the Company or any Underwriter from and against any and
all losses, claims, damages and liabilities (including fees and disbursements of
counsel) arising from any breach by us of any of the provisions of this Article
I.
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II.
Shares purchased by us at a concession from the offering price shall be
promptly offered upon the terms set forth in the international prospectus or for
sale at a concession not in excess of the reallowance under the offering price
to any International Underwriter or to any other dealer who enters into an
agreement with you in this form with respect to this offering that, among other
things, sets forth such dealer's agreement that it is not purchasing Shares for
the account of any United States or Canadian Persons and that it will not offer
or resell Shares in the United States and Canada. Prior to offering Shares to
any dealer at the public offering price less the reallowance, you must either
ascertain that such dealer has entered into such an agreement or assure that
such dealer will enter into such an agreement.
We agree to advise you from time to time upon request, prior to the
termination of this Agreement, of the number of Shares remaining unsold which
were purchased by us from you or from any other International Underwriter or
dealer at a concession from the offering price and, on your request, we will
resell to you any such Shares remaining unsold at the purchase price thereof if,
in your opinion, such Shares are needed to make delivery against sales made to
others.
If prior to the termination of this Agreement (or prior to such earlier
date as you have determined) a U.S. Representative or International
Representative purchases or contracts to purchase in the open market or
otherwise any Shares which were purchased by us from you or from any other
International Underwriter or dealer at a concession from the offering price
(including any Shares represented by certificates which may have been issued on
transfer or in exchange for certificates originally representing such Shares),
and which Shares were therefore not effectively placed for investment by us, we
authorize you either to charge our account with an amount equal to such
concession which shall be credited against the cost of such Shares, or to
require us to repurchase such Shares at a price equal to the total cost of such
purchase, including any commissions and any taxes on redelivery.
We have not offered or sold, and we will not offer or sell, directly or
indirectly, Shares that were purchased by us from you or from any other
International Underwriter or dealer at a concession from the offering price
(including any Shares represented by certificates which may have been issued on
transfer or in exchange for certificates originally representing such Shares) to
any person at less than the offering price, other than to (i) U.S. Underwriters
pursuant to Article I of the Agreement Between U.S. and International
Underwriters or (ii) other International Underwriters or to dealers who have
entered into International Dealer Agreements with the International
Representatives (hereinafter called the International Dealer Agreements) and
then only in conformity with the provisions of Article I and at a price that is
not below the offering price less the
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maximum permissible reallowance to be specified in the international prospectus.
We agree that prior to offering Shares to any dealer at the public offering
price less the reallowance, we will either ascertain that such dealer has
entered into such an International Dealer Agreement or make arrangements to
assure that such dealer will enter into an International Dealer Agreement.
III.
If we purchase any Shares from you hereunder, we agree that such purchases
will be evidenced by your written confirmation and will be subject to the terms
and conditions set forth in the confirmation and in the international
prospectus.
Shares purchased by us from you in connection with our participation as
dealer in the offering shall be paid for in full at (i) the offering price, (ii)
such price less the applicable concession or (iii) the price set forth or
indicated in the pricing wire, as you shall advise, in Federal or other funds
immediately available in New York City in the manner, at such time and on such
day as you may advise us against delivery of the Shares. If we are called upon
to pay the offering price for the Shares purchased by us, the applicable
concession will be paid to us, less any amounts charged to our account pursuant
to Article II above, after termination of this Agreement. Unless we promptly
give you written instruction otherwise, if transactions in the Shares may be
settled through the facilities of The Depository Trust Company, payment for and
delivery of Shares purchased by us will be made through such facilities, if we
are a member, or, if we are not a member, settlement may be made through our
ordinary correspondent who is a member.
We authorize the International Representatives as principals to advance,
or to arrange the advance of, funds to us to cover any delay in the receipt of
funds necessary for payment for the Shares to be purchased by us and to charge,
or to arrange for the charging of, interest on such funds at current rates.
IV.
You will advise us of the date and time of termination of this Agreement
or of any designated provisions hereof. This Agreement shall in any event
terminate 30 days after the date of the initial offering of the Shares unless
sooner terminated by you, provided that you may in your discretion extend this
Agreement for a further period or periods not exceeding an aggregate of 30 days,
and provided further that the provisions of Article I hereof shall survive any
termination of this Agreement.
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V.
We agree that you, as International Representatives, have full authority
to take such action as may seem advisable to you in respect of all matters
pertaining to the offering of the Shares. Neither you, as International
Representatives, nor any of the International Underwriters shall be under any
liability to us for any act or omission, except in respect of obligations
expressly assumed in this Agreement.
All communications to you relating to the subject matter of this Agreement
shall be addressed to the Syndicate Department, Xxxxxx Xxxxxxx & Co.
International Limited, 00 Xxxxx Xxxxxx, Xxxxxx Wharf, Xxxxxx X00 0XX, Xxxxxxx,
and any notices to us shall be deemed to have been duly given if mailed or
telegraphed to us at the address shown below.
VI.
GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York and United States federal law.
Very truly yours,
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(ADDRESS)
By:
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