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EXHIBIT 1.2
DRAFT 2/24/97
MAPCO INC.
Common Stock
(Par Value $1.00 Per Share)
UNDERWRITING AGREEMENT
_____ __, 199_
To the Representative(s) of the several Underwriters named in the respective
Pricing Agreements hereinafter described.
Dear Sirs:
MAPCO Inc., a Delaware corporation (the "Company"), proposes to issue
and sell certain shares (the "Shares") of the Company's Common Stock, par value
$1.00 per share (the "Common Stock"), from time to time in one or more
offerings on the terms and conditions determined at the time of the sale.
This confirms the agreement that, whenever the Company determines to
make an offering of the Shares through one or more underwriters (an
"Underwriter" or the "Underwriters") for whom you (the "Representative(s)" or
"you") are acting as Representatives, it will enter into a Pricing Agreement (a
"Pricing Agreement") with you and such Underwriter or Underwriters providing
for the sale of such Shares to, and the purchase and offering thereof by, you
and such Underwriter or Underwriters. The Pricing Agreement shall be
substantially in the form of Exhibit A hereto and shall specify such applicable
information as is indicated in such Exhibit and such other information as the
parties executing such Pricing Agreement shall determine. The Pricing
Agreement will incorporate by reference the provisions of this Agreement (as
defined below). Each offering of Shares will be governed by this Agreement, as
supplemented by the applicable Pricing Agreement, and this Agreement and such
Pricing Agreement shall inure to the benefit of, and be binding upon, each
Underwriter participating in the offering of the Shares. Unless the context
otherwise requires, as used herein, the term "Agreement" shall refer to this
Underwriting Agreement, dated as of ___________, 199_, as executed by the
Company, as supplemented by the applicable Pricing Agreement, as executed by
the Company and by, and on behalf of, the Representatives and the Underwriter
or Underwriters which are parties thereto. The number of Shares to be issued
from time to time will be specified in such Pricing Agreements (with respect to
such Pricing Agreements, the Shares shall be referred to as "Firm Shares"). If
specified in such Pricing Agreements, the Company may grant to the Underwriters
the right to purchase at their election an additional number of Shares,
specified in such Pricing Agreements as provided in Section 2 hereof (the
"Optional Shares"). The Firm Shares and the Optional Shares, if any, which the
Underwriters elect to purchase pursuant to Section 2 hereof are herein
collectively called the "Designated Shares."
The terms and rights of any particular issuance of Designated Shares
shall be as specified in the Pricing Agreement relating thereto.
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The obligation of the Company to issue and sell any of the Shares and
the obligation of any of the Underwriters to purchase any of the Shares shall
be evidenced by the Pricing Agreement with respect to the Designated Shares
specified therein. Each Pricing Agreement shall specify the aggregate number
of the Firm Shares, the maximum number of Optional Shares, if any, the initial
public offering price of such Firm and Optional Shares or the manner of
determining such price, the purchase price to the Underwriters of such
Designated Shares, the names of the Underwriters of such Designated Shares, the
names of the Representatives of such Underwriters, the number of such
Designated Shares to be purchased by each Underwriter and the commission, if
any, payable to the Underwriters with respect thereto and shall set forth the
date, time and manner of delivery of such Firm and Optional Shares, if any, and
payment therefor and such other information as the parties executing such
Pricing Agreement shall determine. A Pricing Agreement shall be in the form of
an executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-20837)
relating to the registration of the Shares under the Securities Act of 1933, as
amended (the "Securities Act"), and the offering thereof from time to time in
accordance with Rule 415 under the rules and regulations of the Commission
under the Securities Act (the "Securities Act Regulations"), which registration
statement has been declared effective by the Commission and copies of which
have heretofore been delivered to you. Such registration statement, in the
form in which it was declared effective, as amended through the date hereof,
including all documents incorporated or deemed to be incorporated by reference
therein and the information, if any, deemed to be part thereof pursuant to Rule
434 of the Securities Act Regulations (or otherwise) through the date hereof,
and any registration statement filed pursuant to Rule 462(b) of the Securities
Act Regulations, including all exhibits thereto is hereinafter referred to as
the "Registration Statement." The Company proposes to file with the Commission
pursuant to Rule 424(b) of the Securities Act Regulations a supplement (the
"Prospectus Supplement") to the Base Prospectus (as defined below) relating to
the Shares and the prospectus dated __________, 1997 (the "Base Prospectus")
relating to the Shares, and has previously advised you of all further
information (financial and other) with respect to the Company set forth
therein. The Base Prospectus together with the Prospectus Supplement, in their
respective forms on the date hereof (being the forms in which they are to be
filed with the Commission pursuant to Rule 424(b) of the Securities Act
Regulations), including all documents incorporated or deemed to be incorporated
by reference therein and the information, if any, deemed to be part thereof
pursuant to Rule 434 of the Securities Act Regulations through the date hereof,
are hereinafter referred to as the "Prospectus," except that if any revised
prospectus or prospectus supplement shall be provided to the Underwriters by
the Company for use in connection with the offering of the Shares which differs
from the Prospectus (whether or not such revised prospectus or prospectus
supplement is required to be filed by the Company pursuant to Rule 424(b) of
the Securities Act Regulations), the term "Prospectus" shall also refer to such
revised prospectus or prospectus supplement, as the case may be, from
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and from time it is first provided to the Underwriters for such use.
Unless the context otherwise requires, all references in this Agreement to
documents, financial statements and schedules and other information which is
"contained," "included," "stated," "described" or "referred to" in the
Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such documents, financial
statements and schedules and other information which is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement or the Prospectus shall be deemed to
mean and include the filing of any document under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), after the date of this Agreement
which is or is deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be. If the Company elects to rely
on Rule 434 of the Securities Act Regulations, all references to the Prospectus
shall be deemed to include, without limitation, the form of prospectus and the
abbreviated term sheet, taken together, provided to the Underwriters by the
Company in reliance on Rule 434 of the Securities Act Regulations (the "Rule
434 Prospectus"). If the Company files a registration statement to register a
portion of the Shares and relies on Rule 462(b) of the Securities Act
Regulations for such registration statement to become effective upon filing
with the Commission (the "Rule 462 Registration Statement"), then any reference
to "Registration Statement" herein shall be deemed to be to both the
registration statement referred to above (No. 333-20837) and the Rule 462
Registration Statement, as each such registration statement may be amended
pursuant to the Securities Act.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE
COMPANY. The Company represents and warrants to each Underwriter as of the
date hereof, as of the date of the applicable Pricing Agreement and as of each
Time of Delivery referred to in Section 3 hereof, and agrees with each
Underwriter as follows:
(a) The Company meets the requirements for use of Form
S-3 under the Securities Act and the Securities Act Regulations and
the conditions for use of Form S-3, as set forth in the general
instructions thereto, have been satisfied. The Company has filed with
the Commission the Registration Statement and has filed such
amendments thereto as may have been required to the date hereof. The
Registration Statement (which includes any post-effective amendment
thereto) has been declared effective by the Commission; no stop order
suspending the effectiveness of such Registration Statement has been
issued; and no proceeding for that purpose has been initiated or
threatened by the Commission;
(b) The Registration Statement and the Prospectus, at the
time the Registration Statement and any amendments thereto became
effective and as of the date hereof, as of the date of the applicable
Pricing Agreement and as of each Time of Delivery, complied in all
material respects with the applicable requirements of the Securities
Act and the Securities Act Regulations. The Registration Statement,
at the time the Registration Statement and any amendments thereto
became effective and as of the date hereof, as of the date of the
applicable Pricing Agreement and as of each Time of Delivery, did not,
and will not, contain any untrue statement of a material fact or
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omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. The
Prospectus, at the time the Registration Statement and any amendments
thereto became effective and as of the date hereof, as of the date of
the applicable Pricing Agreement and as of each Time of Delivery
(unless the term "Prospectus" refers to a prospectus which has been
provided to the Underwriters by the Company for use in connection with
the offering of the Shares which differs from the Prospectus filed
with the Commission pursuant to Rule 424(b) of the Securities Act
Regulations, in which case also at the time the Prospectus is first
provided to the Underwriters for such use) did not, and will not,
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. The two preceding sentences do not apply to information
contained in or omitted from the Registration Statement or the
Prospectus (or any supplement thereto) in reliance upon and in
conformity with written information furnished to the Company through
the Representatives by or on behalf of any Underwriter specifically
for use therein (the "Underwriters' Information"). For purposes of
this Section 1(b), all references to the Registration Statement, any
post-effective amendments thereto and the Prospectus shall be deemed
to include, without limitation, any electronically transmitted copies
thereof, including, without limitation, any copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis, and
Retrieval system ("XXXXX");
(c) The documents incorporated by reference or deemed to
be incorporated by reference in the Prospectus, when they became
effective and at the time they were filed with the Commission,
complied and will comply in all material respects with the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder (the "Exchange Act Regulations"), and none of
such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange
Act and the Exchange Act Regulations and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(d) The Company and each of its subsidiaries have been
duly incorporated and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of
incorporation, are duly qualified to do business and are in good
standing as foreign corporations in each jurisdiction in which their
respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all power
and authority necessary to own or hold their respective properties and
to conduct the businesses in which they are engaged, except where the
failure to so qualify or have such power or authority would not have,
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singularly or in the aggregate, a material adverse effect on the
financial condition, results of operations or business of the Company
and its subsidiaries taken as a whole;
(e) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and are not subject to preemptive or
similar rights and conform to the description thereof contained in the
Prospectus;
(f) The Shares have been duly and validly authorized,
and, when the Designated Shares are issued and delivered pursuant to
this Agreement and the Pricing Agreement with respect to such
Designated Shares, such Designated Shares will be duly and validly
issued and fully paid and non-assessable and are not subject to
preemptive or similar rights; the Shares conform to the description
thereof contained in the Registration Statement and the Designated
Shares will conform to the description thereof contained in the
Prospectus as amended or supplemented with respect to such Designated
Shares;
(g) This Agreement has been duly authorized, executed and
delivered by the Company;
(h) The issue and sale of the Shares, and the compliance
by the Company with all of the provisions of this Agreement and any
Pricing Agreement and the consummation of the transactions
contemplated hereby and thereby will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject and which
conflict, breach, violation or default would have a material adverse
effect on the financial condition, results of operations or business
of the Company and its subsidiaries taken as a whole, nor will such
actions result in any violation of the provisions of the charter or
by-laws of the Company or any of its subsidiaries or any statute or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries
or any of their properties or assets; and except for the registration
of the Shares under the Securities Act, such consents, approvals,
authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the Shares by the
Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency or
body is required for the execution, delivery and performance of this
Agreement or any Pricing Agreement and the consummation of the
transactions contemplated hereby and thereby;
(i) The financial statements (including the related notes
and supporting schedules) filed as part of the Registration Statement
or included or incorporated by
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reference in the Prospectus present fairly in all material respects
the financial condition 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 disclosed therein;
(j) Other than as set forth or incorporated by reference
in the Registration Statement and in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property or assets of
the Company or any of its subsidiaries is the subject which,
singularly or in the aggregate, are reasonably likely to have a
material adverse effect on the financial condition, results of
operations or business of the Company and its subsidiaries taken as a
whole; and to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or
threatened by others;
(k) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, which is
material to the Company and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus; and
since the respective dates as of which information is given in the
Prospectus, there has not been any material change in the capital
stock or long-term debt of the Company or any of its subsidiaries
(other than pursuant to employee stock option and dividend
reinvestment plans or the Company's common stock repurchase program as
set forth or contemplated in the Prospectus) or any material adverse
change, or any development which the Company has reasonable cause to
believe will involve a material adverse change, in or affecting the
management, financial position, stockholder's equity or results of
operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus;
(l) The accountants who certified the financial
statements and supporting schedules included or incorporated by
reference into the Registration Statement and Prospectus are
independent public accountants as required by the Securities Act and
the Securities Act Regulations; and
(m) Other than as set forth or incorporated by reference
in the Registration Statement and 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 owned or to be owned by such person or to
require the Company to include such securities in the securities
registered pursuant to the Registration Statement or in any securities
being registered pursuant to any other registration statement filed by
the Company under the Securities Act.
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Any certificate signed by any officer of the Company and
delivered to the Representatives or to counsel for the Underwriters
shall be deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby.
2. PURCHASE BY THE UNDERWRITERS; OPTIONAL SHARES. On the
basis of the representations, warranties and agreements contained herein, and
subject to the terms and conditions set forth herein and upon the execution of
the Pricing Agreement applicable to any Designated Shares, (a) the Company
agrees to issue and sell to the Underwriters, and each of the Underwriters
severally and not jointly, agrees to purchase from the Company, at the price
per share set forth in the applicable Pricing Agreement, the number of Firm
Shares set forth in Schedule I to the applicable Pricing Agreement opposite the
name of each Underwriter (except as otherwise provided in such Pricing
Agreement) and (b) in the event and to the extent that the Underwriters shall
exercise the election to purchase Optional Shares as provided below, the
Company agrees to issue and sell to the Underwriters, and each of the
Underwriters severally and not jointly, agrees to purchase from the Company, at
the price per share set forth in the applicable Pricing Agreement, that portion
of the number of Optional Shares as to which such election shall have been
exercised, determined as set forth below.
The Company may specify in the Pricing Agreement applicable to any
Designated Shares that the Company thereby grants to the Underwriters the right
(an "Over-allotment Option") to purchase at their election up to the number of
Optional Shares set forth in such Pricing Agreement, on the terms set forth in
the paragraph above, for the sole purpose of covering over-allotments in the
sale of the Firm Shares. Any such election to purchase Optional Shares may be
exercised by written notice from the Representatives to the Company, given
within a period specified in the Pricing Agreement, setting forth the aggregate
number of Optional Shares to be purchased and the date on which such Optional
Shares are to be delivered, as determined by the Representatives but in no
event earlier than the First Time of Delivery (as defined in Section 3 hereof)
or, unless the Representatives and the Company otherwise agree in writing,
later than the respective number of business days after the date of such notice
set forth in such Pricing Agreement.
The number of Optional Shares to be added to the number of Firm
Shares to be purchased by each Underwriter as set forth in Schedule I to the
Pricing Agreement applicable to such Designated Shares shall be, in each case,
the number of Optional Shares which the Company has been advised by the
Representatives have been attributed to such Underwriter; provided, that if the
Company has not been so advised, the number of Optional Shares to be so added
shall be, in each case, that proportion of Optional Shares which the number of
Firm Shares to be purchased by such Underwriter under such Pricing Agreement
bears to the aggregate number of Firm Shares (rounded as the Representatives
may determine to the nearest 100 shares). The total number of Designated
Shares to be purchased by all the Underwriters pursuant to such Pricing
Agreement shall be the aggregate number of Firm Shares set forth in Schedule I
to such Pricing Agreement plus the aggregate number of Optional Shares which
the Underwriters elect to purchase.
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The Company shall not be obligated to deliver any Firm Shares or
Optional Shares, as the case may be, except upon payment for all the Designated
Shares as provided in each Pricing Agreement.
3. DELIVERY OF AND PAYMENT FOR THE SHARES. The Company
shall deliver or cause to be delivered to the Representatives for the account
of each Underwriter certificates for the Firm Shares and the Optional Shares to
be purchased by each Underwriter pursuant to the Pricing Agreement relating
thereto, in the form specified in such Pricing Agreement and in such authorized
denominations and registered in such names as the Representatives may request
upon at least twenty-four hours' prior written notice to the Company, against
payment to or upon the order of the Company of the purchase price by certified
or official bank check or wire transfer in same-day funds unless otherwise
specified in the Pricing Agreement (a) with respect to the Firm Shares, all in
the manner and at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives and
the Company may agree upon in writing, such time and date being herein called
the "First Time of Delivery" and (b) with respect to the Optional Shares, if
any, in the manner and at the time and date specified by the Representatives in
the written notice given by the Representatives of the Underwriters' election
to purchase such Optional Shares, or at such other time and date as the
Representatives and the Company may agree upon in writing, such time and date,
if not the First Time of Delivery, herein called the "Second Time of Delivery."
Each such time and date for delivery is herein called a "Time of Delivery."
Time shall be of the essence, and delivery at the time and place specified
pursuant to this Agreement is a further condition of the obligation of each
Underwriter hereunder. The Company shall make the certificates for the Firm
Shares and the Optional Shares to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto available for inspection by the
Representatives in New York, New York, not later than one full business day
prior to the Time of Delivery.
4. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees
with each of the Underwriters:
(a) Immediately following the execution of the Pricing
Agreement, the Company will prepare a Prospectus Supplement setting
forth the names of the Underwriters participating in the offering, the
number of Shares which each severally has agreed to purchase, the
price at which the Shares are to be purchased by the Underwriters from
the Company, the initial public offering price, the selling concession
and reallowance, if any, any delayed delivery arrangements, and such
other information as the Underwriters and the Company deem appropriate
in connection with the offering of the Shares. The Company will
promptly transmit copies of the Prospectus Supplement to the
Commission for proper filing in accordance with Rule 424 of the
Securities Act Regulations not later than the close of business on the
second business day following execution of the Pricing Agreement or,
if applicable, such earlier date as may be required by Rule 424(b) of
the Securities Act Regulations and will furnish to the Underwriters
named therein as many copies of the Prospectus and such Prospectus
Supplement as the Underwriters shall reasonably request;
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(b) For so long as the delivery of a prospectus is
required in connection with the offering or sale of the Securities,
(i) to advise the Representatives promptly of any proposal to amend or
supplement the registration statement as filed or the related
prospectus or the Registration Statement or the Prospectus and not to
effect such amendment or supplementation to which the Underwriters
reasonably object, (ii) to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus and
(iii) to advise the Representatives promptly of the receipt of any
comments from the Commission and of any amendment or supplementation
of the Registration Statement or the Prospectus, or of any request by
the Commission therefor; and to advise the Representatives promptly
(i) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose or (ii) any order preventing or
suspending the use of any prospectus relating to the Shares, of the
suspension of the qualification of such Shares for offering or sale in
any jurisdiction and of the initiation or threatening of any
proceeding for any such purpose; and to use best efforts to prevent
the issuance of any stop order or of any such order preventing or
suspending the use of any prospectus relating to the Shares or
suspending any such qualification and, if any such stop order or order
or suspension is issued, to obtain the lifting thereof at the earliest
possible time;
(c) To furnish promptly to each of the Representatives
and counsel for the Underwriters a signed copy of the Registration
Statement as originally filed with the Commission, and for so long as
the delivery of a prospectus is required in connection with the
offering or sale of the Securities, (i) to furnish promptly to each of
the Representatives and counsel for the Underwriters, each amendment
thereto filed with the Commission, including all consents and exhibits
filed therewith and (ii) to deliver promptly without charge to the
Representatives such number of the following documents as the
Representatives may from time to time reasonably request: (A)
conformed copies of the Registration Statement as originally filed
with the Commission and each amendment thereto (in each case excluding
exhibits other than this Agreement, the Pricing Agreement and the
computation of per share earnings); (B) each preliminary prospectus,
the Prospectus and any amended or supplemented Prospectus; and (C) any
document incorporated by reference (or deemed to be incorporated by
reference) in the Prospectus (excluding exhibits thereto);
(d) If the delivery of a prospectus is required at any
time in connection with the sale of the Shares and if at such time any
condition exists or any event shall have occurred as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or if for any other reason it shall be
necessary, in your view or the view of counsel for the Company, at
such time to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus
in order to
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comply with the Securities Act or the Exchange Act, to notify the
Representatives immediately thereof, and to promptly prepare and file
with the Commission an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect
such compliance, or to file such document for incorporation by
reference into the Prospectus;
(e) To file promptly with the Commission any amendment to
the Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the
Representatives, be required by the Securities Act or requested by the
Commission or advisable in connection with the distribution of the
Shares;
(f) Prior to filing with the Commission any (i) amendment
to the Registration Statement or supplement to the Prospectus or (ii)
any Prospectus pursuant to Rule 424 of the Securities Act Regulations,
to furnish a copy thereof to the Representatives and counsel for the
Underwriters, and not to file any such document to which the
Representatives shall reasonably object after having been given
reasonable notice of the proposed filing thereof; and, during such
time as a prospectus is required to be delivered in connection with
the offer or sale of the Securities, prior to filing with the
Commission any document incorporated by reference in the Prospectus,
to furnish a copy thereof to the Representatives and counsel for the
Underwriters;
(g) To make generally available to the Company's security
holders and to deliver to the Representatives an earning statement of
the Company and its subsidiaries (which need not be audited) complying
with Section 11(a) of the Securities Act and the Securities Act
Regulations (including, at the option of the Company, Rule 158);
(h) For so long as the delivery of a prospectus is
required in connection with the offer or sale of the Shares, to
furnish to the Representatives copies of all materials furnished by
the Company to its shareholders and all public reports and all reports
and financial statements furnished by the Company to the Commission
pursuant to the Exchange Act or the Exchange Act Regulations;
(i) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Shares for
offering and sale under the securities laws of such jurisdictions as
the Representatives may reasonably request and to comply with such
laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of the Shares; provided, that in connection therewith the
Company shall not be required to qualify as a foreign corporation or
to file a general consent to service of process in any jurisdiction;
(j) During the period beginning from the date of the
Pricing Agreement for such Designated Shares and continuing to and
including the Time of Delivery for such Designated Shares, to not,
directly or indirectly, offer for sale, sell, contract to sell or
otherwise dispose of, grant any option for the sale of or file a
registration statement
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for, or announce any offering of, any equity securities of the Company
or any securities of the Company that are substantially similar to the
Designated Shares, including, but not limited to, any securities that
are convertible into or exchangeable for, or that represent the right
to receive, Common Stock or any such substantially similar securities
(other than pursuant to employee stock option plans existing on, or
upon the conversion of convertible or exchangeable securities
outstanding as of, the date of the Pricing Agreement for such
Designated Shares) without the prior written consent of the
Representatives; and
(k) To apply the net proceeds from the sale of the Shares
being sold by the Company as set forth in the Prospectus.
5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective
obligations of the several Underwriters of any Designated Shares under the
Pricing Agreement relating to such Designated Shares are subject to the
accuracy, when made and at and as of each Time of Delivery for such Designated
Shares, of the representations and warranties of the Company contained herein,
to the accuracy of the statements of the Company made in any certificates
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder, and to each of the following additional terms and
conditions as of each Time of Delivery:
(a) The Prospectus, as amended or supplemented in
relation to the applicable Designated Shares, shall have been timely
filed with the Commission in accordance with Section 4(a) of this
Agreement and Rule 424(b) of the Securities Act Regulations within the
applicable time period prescribed for such filing by the Securities
Act and the Securities Act Regulations; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus or otherwise shall have been complied with
to the reasonable satisfaction of the Representatives.
(b) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this Agreement,
the Pricing Agreement relating to such Designated Shares, the
Designated Shares, the Registration Statement and the Prospectus, and
all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be reasonably satisfactory in
all material respects to counsel for the Underwriters, and the Company
shall have furnished to such counsel all documents and information
that they may reasonably request to enable them to pass upon such
matters.
(c) Xxxxx X. Xxxxxx, Esq., General Counsel of the
Company, shall have furnished to the Representatives his written
opinion addressed to the Underwriters and dated as of the date of each
Time of Delivery for such Designated Shares, in form and substance
reasonably satisfactory to the Representatives, to the effect that:
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12
(i) The Company and each significant subsidiary
of the Company within the meaning of Rule 1-02(w) of
Regulation S-X of the Securities Act Regulations (each
hereinafter referred to as a Subsidiary) is a corporation duly
incorporated, validly existing and in good standing under the
laws of the jurisdiction of its incorporation, is duly
qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which its ownership or
lease of property or the conduct of its business requires such
qualification (except where the failure to so qualify would
not have, singularly or in the aggregate, a material adverse
effect on the financial condition, results of operation or
business of the Company and its subsidiaries taken as a
whole), and has the corporate power and authority to own or
hold its property and to carry on its businesses as now
conducted;
(ii) The Company has the authorized capitalization
set forth in the Prospectus, and all of the issued shares of
capital stock of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and
are not subject to preemptive or similar rights and conform to
the description thereof contained in the Prospectus;
(iii) The Shares have been duly and validly
authorized, and, when the Designated Shares are issued and
delivered pursuant to this Agreement and the Pricing Agreement
with respect to such Designated Shares, such Designated Shares
will be duly and validly issued and fully paid and non-
assessable and are not subject to preemptive or similar
rights; the Shares conform to the description thereof
contained in the Registration Statement and the Designated
Shares will conform to the description thereof contained in
the Prospectus as amended or supplemented with respect to such
Designated Shares;
(iv) To the best of such counsel's knowledge,
there are no contracts or other documents which are required
to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the
Securities Act Regulations and which have not been so
described or filed;
(v) The issuance and delivery by the Company of
the Designated Shares, the execution, delivery and performance
by the Company of this Agreement and the Pricing Agreement and
the consummation by the Company of the transactions herein and
therein contemplated will not conflict with or result in a
breach or violation of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or similar agreement or instrument known
to such counsel to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject
and which would have a material adverse effect on the
financial condition, results or operations or business of the
Company and its subsidiaries taken as a whole, nor will such
actions result in any violation of the provisions of the
charter or by-laws of the Company or any of its subsidiaries
- 12 -
13
or any statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or
any of their respective properties or assets;
(vi) Such counsel does not know of any contracts,
agreements or understandings between the Company and any
person granting such person the right to require the Company
to include securities owned or to be owned by such person in
the securities registered pursuant to the Registration
Statement;
(vii) To the best of such counsel's knowledge and
except as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property or
assets of the Company or any of its subsidiaries is subject
which, singularly or in the aggregate, are reasonably likely
to have a material adverse effect on the financial condition,
results of operations or business of the Company and its
subsidiaries taken as a whole; and, to the best of such
counsel's knowledge, no such proceedings are threatened or
contemplated by any governmental authority or body or
threatened by others.
Such opinion shall also include or be accompanied by a
statement to the effect that such counsel has participated in
conferences with representatives of the Company and with
representatives of its independent accountants and counsel at which
conferences the contents of the Registration Statement, the Prospectus
and any amendment and supplement thereto and related matters were
discussed and, while such counsel has not checked the accuracy or
completeness of, or otherwise verified, and is not passing upon, and
assumes no responsibility for, the accuracy or completeness of the
information contained in or incorporated by reference in the
Registration Statement or the Prospectus, or any amendment or
supplement thereto, no facts have come to the attention of such
counsel that have caused him to believe (A) that the Registration
Statement or any amendment thereto (except for the financial
statements, the notes thereto and related schedules and other
financial and statistical data included or incorporated therein by
reference, as to which counsel need not express a belief), at the time
the Registration Statement or any amendment became effective,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or (B) that the Prospectus or any
amendment or supplement thereto (except for the financial statements,
the notes thereto and related schedules and other financial and
statistical data included or incorporated therein by reference as to
which counsel need not express a belief), as of its date or as of such
Time of Delivery, contained or contains an 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.
In giving such opinion, such counsel may state that he is a
member of the Bar of the State of Iowa and no opinion is expressed as
to any laws other than the laws of the State of Iowa, the General
Corporation Law of the State of Delaware and the Federal
- 13 -
14
laws of the United States and except that no opinion is expressed as
to the securities laws of any state. In rendering such opinion or
statement, such counsel may rely as to matters of fact upon
certificates or opinions of responsible officers or counsel of the
Company and of public officials.
(d) Debevoise & Xxxxxxxx shall have furnished to the
Representatives their written opinion, as special counsel to the
Company, addressed to the Underwriters and dated as of the date of
each Time of Delivery for such Designated Shares, in form and
substance reasonably satisfactory to the Representatives, to the
effect that:
(i) The Registration Statement was declared
effective under the Securities Act as of the date and time
specified in such opinion; if applicable, the Prospectus was
filed with the Commission pursuant to the subparagraph of Rule
424(b) of the Securities Act Regulations specified in such
opinion on the date specified therein; and no stop order
suspending the effectiveness of such Registration Statement
has been issued and, to the best knowledge of such counsel, no
proceedings for that purpose have been instituted or
threatened by the Commission;
(ii) As of its date and at such Time of Delivery,
each Registration Statement and Prospectus and any further
amendments or supplements to any Registration Statement or
Prospectus made prior to such Time of Delivery (except for the
financial statements, the notes thereto and related schedules
and other financial and statistical data included or
incorporated therein by reference, as to which counsel need
not express an opinion) comply as to form in all material
respects with the requirements of the Securities Act and the
Securities Act Regulations; and each document filed pursuant
to the Exchange Act and incorporated by reference in such
Prospectus (except for the financial statements, the notes
thereto and related schedule and other financial data included
or incorporated therein by reference, as to which counsel need
not express an opinion) as of its respective filing date,
complied as to form in all material respects with the
requirements of the Exchange Act and the Exchange Act
Regulations;
(iii) The Company has the corporate power and
authority to execute and deliver this Agreement and the
Pricing Agreement with respect to the Designated Shares and to
perform its obligations hereunder and thereunder; and all
corporate action required to be taken by the Company for the
due and proper authorization, execution, delivery and
performance of this Agreement and the Pricing Agreement with
respect to the Designated Shares and the consummation of the
transactions contemplated by such documents has been duly and
validly taken;
(iv) This Agreement has been duly authorized,
executed and delivered by the Company;
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15
(v) The Pricing Agreement has been duly
authorized, executed and delivered by the Company;
(vi) The issuance and delivery by the Company of
the Designated Shares, the execution, delivery and performance
by the Company of this Agreement and the Pricing Agreement and
the consummation by the Company of the transactions herein and
therein contemplated will not (A) violate any provision of the
Restated Certificate of Incorporation or By-laws of the
Company or (B) contravene any statute, rule or regulation
known to such counsel;
(vii) Except for the registration of the Shares
under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state
securities laws or those obtained prior to the date of the
opinion as set forth in the opinion in connection with the
purchase and distribution of the Designated Shares being
delivered at such Time of Delivery by the Underwriters, no
consent, approval, authorization or order of, or any filing or
registration with, any governmental agency or body is required
for the valid authorization, issuance and delivery of the
Designated Shares by the Company, the execution, delivery and
performance by the Company of this Agreement or the Pricing
Agreement and the consummation by the Company of the
transactions herein and therein contemplated;
Such opinion shall also include or be accompanied by a
statement to the effect that such counsel has participated in
conferences with representatives of the Company and with
representatives of its independent accountants and counsel at which
conferences the contents of the Registration Statement, the Prospectus
and any amendment and supplement thereto and related matters were
discussed, and while such counsel have not checked the accuracy or
completeness of, or otherwise verified and, are not passing upon, and
assume no responsibility for, the accuracy or completeness of the
information contained in or incorporated by reference in the
Registration Statement, the Prospectus, or any amendment or supplement
thereto (except to the limited extent stated in paragraph (vii)
above), no facts have come to the attention of such counsel that have
caused them to believe (A) that the Registration Statement or any
amendment thereto (except for the financial statements, the notes
thereto and related schedules and other financial and statistical data
included or incorporated therein by reference, as to which counsel
need not express a belief), at the time the Registration Statement or
any amendment became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or (B) that the Prospectus or any amendment or supplement
thereto (except for the financial statements, the notes thereto and
related schedules and other financial and statistical data included or
incorporated therein by reference, as to which counsel need not
- 15 -
16
express a belief), as of its date or as of such Time of Delivery,
contained or contains an 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.
In giving such opinion, such counsel may state that such
opinion is limited to the laws of the State of New York, the General
Corporation Law of the State of Delaware and the Federal laws of the
United States (other than laws with respect to federal energy
regulation), except that such counsel expresses no opinion as to the
securities laws of any state. In rendering such opinion or statement,
such counsel may rely as to matters of fact upon certificates or
opinions of responsible officers or counsel of the Company and of
public officials.
(e) The Representatives shall have received from Fried,
Frank, Harris, Xxxxxxx & Xxxxxxxx, counsel for the Underwriters, such
opinion or opinions, dated as of each Time of Delivery, with respect
to such matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they
request for enabling them to pass upon such matters.
(f) The Company shall have furnished to the
Representatives a letter (the "Initial Letter") of Deloitte & Touche
LLP, addressed to the Representatives and dated the date of the
applicable Pricing Agreement, in form and substance reasonably
satisfactory to the Representatives, substantially to the effect set
forth in Annex A hereto.
(g) The Company shall have furnished to the
Representatives a letter (as used in this paragraph, the "Bring-Down
Letter") of Deloitte & Touche LLP, dated as of the date of the Pricing
Agreement for the Designated Shares and at each Time of Delivery for
such Designated Shares, in form and substance reasonably satisfactory
to the Representatives and addressed to the Underwriters (i)
confirming that they are independent public accountants with respect
to the Company and its subsidiaries within the meaning of Rule 101 of
the Code of Professional Conduct of the AICPA and its interpretations
and rulings and are in compliance with the applicable requirements
relating to the qualification of accountants in Rule 2-01 of
Regulation S-X of the Securities Act Regulations, (ii) stating, as of
the date of the Bring-Down Letter (or, with respect to matters
involving changes or developments since the respective dates as of
which specified financial information is given in the Prospectus, as
of a date not more than five days prior to the date of the Bring-Down
Letter), that the conclusions and findings of such firm with respect
to the financial information and other matters covered by the Initial
Letter are accurate, (iii) confirming in all material respects the
conclusions and findings set forth in the Initial Letter and (iv)
confirming they have performed certain procedures with respect to
certain amounts, percentages and financial information specified by
the Representatives and have found such amounts, percentages and
financial information to be in agreement with the records of the
Company.
- 16 -
17
(h) The Company shall have furnished to the
Representatives a certificate, dated as of each Time of Delivery, of
its Chairman of the Board, its President or an Executive Vice
President and its chief financial officer stating that (i) such
officers have carefully examined the Registration Statement, the
Prospectus, this Agreement and the Pricing Agreement, (ii) in their
opinion, as of each Time of Delivery, (A) the Registration Statement,
including the documents incorporated therein by reference, does not
include any untrue statement of a material fact and did not omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (B) the Prospectus,
including the documents incorporated therein by reference, does not
include any untrue statement of a material fact and did not omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, and since the Effective Time, no
event has occurred which should have been set forth in a supplement or
amendment to the Registration Statement or the Prospectus and which
has not been so set forth and (iii) to the best of his or her
knowledge after reasonable investigation, as of each Time of Delivery,
the representations and warranties of the Company in this Agreement
are true and correct, the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to each Time of Delivery, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or, to
the best of his or her knowledge, are contemplated by the Commission,
and subsequent to the date of the most recent financial statements in
the Prospectus, there has been no material adverse change in the
financial position or results of operation of the Company and its
subsidiaries taken as a whole, or any change, or any development
including a prospective change, in or affecting the financial
condition, results of operations or business of the Company and its
subsidiaries taken as a whole, except as set forth in the Prospectus.
(i) Since the respective dates as of which information is
given in the Registration Statement (exclusive of any amendment
thereof) and the Prospectus (exclusive of any supplement thereto),
there shall not have been any change (other than pursuant to employee
stock option and dividend re-investment plans or the Company's common
stock repurchase plan, as set forth or contemplated in the Prospectus)
in the capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective
change, in or affecting the financial condition, results of operations
or business of the Company and its subsidiaries taken as a whole, the
effect of which, in any such case described above, is, in the judgment
of the Representatives, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or
the delivery of the Designated Shares on the terms and in the manner
contemplated in the Prospectus (as amended or supplemented).
(j) Subsequent to the date of the Pricing Agreement
relating to the Designated Shares, (i) no downgrading shall have
occurred in the rating accorded any of the Company's debt securities
by any "nationally recognized statistical rating
- 17 -
18
organization," as that term is defined by the Commission for purposes
of Rule 436(g)(2) of the Securities Act Regulations and (ii) no such
organization shall have publicly announced that it has under
surveillance or review (other than an announcement with positive
implications of a possible upgrading), its rating of any of the
Company's debt securities.
(k) Subsequent to the execution and delivery of the
Pricing Agreement relating to the Designated Shares, there shall not
have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange
or the over-the-counter market shall have been suspended or limited,
or minimum prices shall have been established on either of such
exchanges or such market by the Commission, by such exchanges or
market or by any other regulatory body or governmental authority
having jurisdiction, or trading in securities of the Company on any
exchange or in the over-the-counter market shall have been suspended
or (ii) a general moratorium on commercial banking activities shall
have been declared by Federal or New York State or Oklahoma State
authorities or (iii) an outbreak or escalation of hostilities or a
declaration by the United States of a national emergency or war or
such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the
financial markets in the United States shall be such) as to make it,
in the judgment of the Representatives, impracticable or inadvisable
to proceed with the public offering or the delivery of the Designated
Shares on the terms and in the manner contemplated in the Prospectus.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriters.
6. TERMINATION. The obligations of the Underwriters
hereunder may be terminated by the Representatives, in their absolute
discretion, by notice given to and received by the Company prior to delivery of
and payment for the Designated Shares pursuant to a Pricing Agreement if, prior
to that time, any of the events described in Sections 5(i), 5(j) or 5(k) shall
have occurred.
7. DEFAULTING UNDERWRITERS. (a) If any Underwriter or
Underwriters default in its or their obligation to purchase the Firm Shares or
the Optional Shares which it has agreed to purchase under the Pricing Agreement
relating to such Designated Shares, the Representatives may make arrangements
for the purchase of such Firm Shares or Optional Shares, as the case may be, by
other persons satisfactory to the Company and the Representatives, including
any of the Underwriters, but if no such arrangements are made by the Time of
Delivery, then each remaining non-defaulting Underwriter shall be severally
obligated to purchase the Firm Shares or Optional Shares, as the case may be,
which the defaulting Underwriter or Underwriters agreed but failed to purchase
in the respective proportions which the number of Firm Shares or Optional
Shares, as the case may be, set forth opposite the name of each remaining non-
defaulting Underwriter in Schedule I of the applicable Pricing Agreement bears
to the aggregate number of Firm Shares or Optional
- 18 -
19
Shares, as the case may be, set forth opposite the names of all the remaining
non-defaulting Underwriters in Schedule I of the applicable Pricing Agreement;
provided, however, that the remaining non-defaulting Underwriters shall not be
obligated to purchase any of the Firm Shares or Optional Shares, as the case
may be, if the aggregate number of Firm Shares or Optional Shares, as the case
may be, which the defaulting Underwriter or Underwriters agreed but failed to
purchase on such date exceeds one-tenth of the aggregate number of the Firm
Shares or Optional Shares, as the case may be, to be purchased, and any
remaining non-defaulting Underwriter shall not be obligated to purchase in
total more than 110% of the number of the Firm Shares or Optional Shares, as
the case may be, which it agreed to purchase, pursuant to the terms of Section
2. If the foregoing maximums are exceeded and the remaining Underwriters or
other underwriters satisfactory to the Representatives and the Company do not
elect to purchase, within 36 hours after such default, the Firm Shares or
Optional Shares, as the case may be, which the defaulting Underwriter or
Underwriters agreed but failed to purchase, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the Company,
except that the Company will continue to be liable for the payment of expenses
to the extent set forth in Sections 8 and 12 and except that the provisions of
Sections 9 and 10 shall not terminate and shall remain in effect. As used in
this Agreement, the term "Underwriter" includes, for all purposes of this
Agreement unless the context otherwise requires, any party not listed in
Schedule I of the applicable Pricing Agreement who, pursuant to this Section 7,
purchases the Firm Shares or Optional Shares, as the case may be, which a
defaulting Underwriter agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have for damages caused by its default. If
other Underwriters are obligated or agree to purchase the Firm Shares or
Optional Shares, as the case may be, of a defaulting Underwriter, either the
Representatives or the Company may postpone the Time of Delivery for up to
seven full business days in order to effect any changes that in the opinion of
counsel for the Company or counsel for the Underwriters may be necessary in the
Registration Statement, the Prospectus or in any other document or arrangement,
and the Company agrees to file promptly any amendment or supplement to the
Registration Statement or the Prospectus that effects any such changes.
8. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If (a) the
Company shall fail to tender the Designated Shares for delivery to the
Underwriters for any reason permitted under this Agreement or (b) the
Underwriters shall decline to purchase the Designated Shares for any reason
permitted under this Agreement (including the termination of this Agreement
pursuant to Section 6) and the Pricing Agreement, the Company shall reimburse
the Underwriters for the fees and expenses of their counsel and for such other
out-of-pocket expenses as shall have been reasonably incurred by them in
connection with this Agreement and the Pricing Agreement and the proposed
purchase of the Designated Shares, and upon demand the Company shall pay the
full amount thereof to the Representatives. If this Agreement is terminated
pursuant to Section 7 by reason of the default of one or more Underwriters, the
Company shall not be obligated to reimburse the Underwriters on account of
those expenses.
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20
9. INDEMNIFICATION. (a) The Company shall indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of the Securities Act or the Exchange Act
(collectively referred to for purposes of this Section 9(a) and Section 10 as
an Underwriter), from and against any loss, claim, damage or liability, joint
or several, or any action in respect thereof (including, without limitation,
any loss, claim, damage, liability or action relating to purchases and sales of
the Shares), to which that Underwriter may become subject, whether commenced or
threatened, under the Securities Act, the Exchange Act, any other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement as originally filed or in any amendment or
supplement thereto or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, or (ii) any untrue statement or alleged
untrue statement of material fact contained in any preliminary prospectus, any
preliminary prospectus supplement or the Prospectus (or amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, and shall reimburse
each Underwriter promptly upon demand for any legal or other expenses
reasonably incurred by that Underwriter in connection with investigating or
defending or preparing to defend against or appearing as a third party witness
in connection with any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any preliminary prospectus,
preliminary prospectus supplement, Registration Statement (as originally filed
or in any amendment or supplement thereto) or the Prospectus (as originally
filed or in any amendment or supplement thereto) in reliance upon and in
conformity with any Underwriters' Information; and provided, further, that with
respect to any such untrue statement or alleged untrue statement in or omission
or alleged omission from the preliminary prospectus or preliminary prospectus
supplement, the indemnity agreement contained in this Section 9(a) shall not
inure to the benefit of any Underwriter to the extent that the sale to the
person asserting any such loss, claim, damage, liability or action was a sale
by such Underwriter and any such loss, claim, damage, liability or action of or
with respect to such Underwriter results from the fact that both (A) to the
extent required by applicable law, a copy of the Prospectus (as amended or
supplemented) was not sent or given to such person at or prior to the written
confirmation of the sale of such Securities to such person (if the Company has
previously furnished copies thereof sufficiently in advance of the Closing Time
to allow for distribution of the Prospectus in a timely manner) and (B) the
untrue statement or alleged untrue statement in or omission or alleged omission
from the preliminary prospectus or preliminary prospectus supplement was
corrected in the Prospectus (as amended or supplemented) unless, in either
case, such failure to deliver the Prospectus (as amended or supplemented) was a
result of non-compliance by the Company with Section 4(c).
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, its directors, each officer of the
Company who signed the Registration
- 20 -
21
Statement and each person, if any, who controls the Company within the meaning
of the Securities Act or the Exchange Act (collectively referred to for
purposes of this Section 9(b) and Section 10 as the Company), from and against
any loss, claim, damage or liability, joint or several, or any action in
respect thereof, to which the Company may become subject, whether commenced or
threatened, under the Securities Act, the Exchange Act, any other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
loss, claim, damage, liability or action arises out of or is based upon, (i)
any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement as originally filed or in any amendment or
supplement thereto or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, or (ii) any untrue statement or alleged
untrue statements of material fact contained in any preliminary prospectus, any
preliminary prospectus supplement or the Prospectus (as originally filed or in
any amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading, but
in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Underwriter expressly for use therein, and shall reimburse the Company
promptly upon demand for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending or preparing to defend
against or appearing as a third party witness in connection with any such loss,
claim, damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
this Section 9 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party pursuant to Section 9(a) or 9(b), notify the
indemnifying party in writing of the claim or the commencement of that action;
provided, however, that the failure to notify the indemnifying party shall not
relieve it from any liability which it may have under this Section 9 except to
the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and, provided, further, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 9. If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of
its election to assume the defense of such claim or action, the indemnifying
party shall not be liable to the indemnified party under this Section 9 for any
legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that an indemnified party shall have the
right to employ its own counsel in any such action (in which case, if such
indemnified party is indemnified pursuant to Section 9(a) above, counsel to the
indemnified party shall be selected by the Representatives or if such
indemnified party is indemnified pursuant to Section 9(b) above, counsel to the
indemnified party shall be selected by the Company), but the fees and expenses
- 21 -
22
of such separate counsel shall be paid by such indemnified party unless (i) the
employment of counsel by the indemnified party and the payment of fees and
expenses by the indemnifying party has been authorized in writing by the
indemnifying party, (ii) the indemnified party has reasonably concluded (based
on advice of counsel for the indemnified party) that there may be legal
defenses available to it or other indemnified parties that are different from
or in addition to those available to the indemnifying party, (iii) a conflict
or potential conflict exists (based on advice of counsel for the indemnified
party) between the indemnified party and the indemnifying party, or (iv) the
indemnifying party has not in fact employed counsel to assume the defense of
such action within a reasonable time after receiving notice of the election of
the indemnifying party to assume the defense of the action, in each of which
cases the indemnifying party will not have the right to direct the defense of
such action on behalf of the indemnified party and the reasonable fees and
expenses of counsel will be at the expense of the indemnifying party or
parties. It is understood that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees, disbursements and other charges of more than
one separate firm of attorneys (in addition to any local counsel) at any one
time for all such indemnified party or parties. Each indemnified party, as a
condition of the indemnity agreements contained in Sections 9(a) and 9(b),
shall use all reasonable efforts to cooperate with the indemnifying party in
the defense of any such action or claim. No indemnifying party shall be liable
for any settlement of any such action effected without its written consent, but
if settled with its written consent or if there is a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss, claim, damage or
liability by reason of such settlement or judgment. No indemnifying party
shall, without the prior written consent of the indemnified party, which shall
not be unreasonably withheld, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could
reasonably have been a party and indemnity could have been sought hereunder by
such indemnified party unless such settlement (i) includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such proceeding and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
The obligations of the Company and the Underwriters in this Section 9
and in Section 10 are in addition to any other liability that the Company or
the Underwriters, as the case may be, may otherwise have, including in respect
of any breaches of representations, warranties and agreements made herein by
any such party.
10. CONTRIBUTION. If the indemnification provided for in
Section 9 is unavailable or insufficient to hold harmless an indemnified party
under Section 9(a) or 9(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable
by such indemnified party as a result of such loss, claim, damage or liability,
or action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Designated Shares, or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
- 22 -
23
the Company on the one hand and the Underwriters on the other with respect to
the statements or omissions that resulted in such loss, claim, damage or
liability, or action in respect thereof, 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 with respect to such offering shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Designated Shares purchased under the applicable Pricing
Agreement (before deducting expenses) received by or on behalf of the Company,
on the one hand, and the total discounts and commissions received by the
Underwriters with respect to the Designated Shares purchased under the
applicable Pricing Agreement, on the other, bear to the total gross proceeds
from the sale of the Designated Shares under the applicable Pricing Agreement,
in each case as set forth in the table in the Prospectus Supplement. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to the Company or information
supplied by the Company on the one hand or to any Underwriters' Information on
the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 10 were to be 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 into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 10
shall be deemed to include, for purposes of this Section 10, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending or preparing to defend any such action or claim.
Notwithstanding the provisions of this Section 10, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
discounts and commissions received by such Underwriter with respect to the
Designated Shares purchased by it under the applicable Pricing Agreement
exceeds the amount of any damages which such Underwriter has otherwise paid or
become liable to pay by reason of any 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 Underwriters' obligations to contribute as provided in
this Section 10 are several in proportion to their respective underwriting
obligations and not joint.
11. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This
Agreement shall inure to the benefit of and be binding upon the Underwriters,
the Company, and their respective successors. Nothing expressed or mentioned
in this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters and the Company and their respective
successors and the controlling persons and officers and directors referred to
in Sections 9 and 10 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein. No purchaser of the Securities from any
Underwriter shall be deemed a successor by reason merely of such purchase.
- 23 -
24
12. EXPENSES. The Company agrees with the Underwriters to
pay (a) the costs incident to the authorization, issuance, sale, preparation
and delivery of the Shares and any taxes payable in that connection; (b) the
costs incident to the preparation, printing and filing under the Securities Act
of the Registration Statement and the Prospectus and any amendments and
exhibits thereto; (c) the costs of distributing the Registration Statement as
originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), any preliminary prospectus, the
Prospectus and any amendment or supplement to the Prospectus, all as provided
in this Agreement; (d) the costs of printing, reproducing and distributing this
Agreement and any other underwriting and selling group documents by mail, telex
or other means of communications; (e) the filing fees incident to securing any
required review by the National Association of Securities Dealers, Inc. of the
terms of sale of the Shares; (f) any applicable listing or other fees, if any;
(g) the fees and expenses of qualifying the Shares under the securities laws of
the several jurisdictions as provided in Section 4(i) and of preparing,
printing and distributing Blue Sky Memoranda and Legal Investment Surveys
(including related fees and expenses of counsel for the Underwriters); and (h)
all other costs and expenses incident to the performance of the obligations of
the Company under this Agreement; provided, that except as otherwise provided
in this Section 12 and in Section 8, the Underwriters shall pay their own costs
and expenses, including the costs and expenses of their counsel, any transfer
taxes on the Shares which they may sell and the expenses of advertising any
offering of the Shares made by the Underwriters.
13. SURVIVAL. The respective indemnities, rights of
contribution, representations, warranties and agreements of the Company and the
Underwriters contained in this Agreement and each Pricing Agreement or made by
or on behalf on them, respectively, pursuant to this Agreement and each Pricing
Agreement, shall survive the delivery of and payment for the Designated Shares
under the applicable Pricing Agreement and shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of any of them or any person controlling any
of them.
14. NOTICES, ETC. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) notices to the Underwriters shall be directed to the
Underwriters at the address indicated in the applicable Pricing
Agreement; and
(b) notices to the Company shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company
set forth in the Registration Statement, Attention: Senior Vice
President, General Counsel and Secretary.
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof. The Company shall be entitled to act and rely upon
any request, consent, notice or agreement given or made on behalf of the
Underwriters by the Representatives.
15. DEFINITIONS OF CERTAIN TERMS. For purposes of this
Agreement, (a) "business day" means any day on which the New York Stock
Exchange, Inc. is open for
- 24 -
25
trading and (b) "subsidiary" has the meaning set forth in Rule 405 of the
Securities Act Regulations.
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
17. COUNTERPARTS. Each Pricing Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same
instrument.
18. HEADINGS. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
If the foregoing is in accordance with your understanding of the
agreement between the Company and the several Underwriters, kindly indicate
your acceptance in the space provided for that purpose below.
Very truly yours,
MAPCO INC.
By _____________________________________________
Name:
Title:
- 25 -
26
ANNEX A
[Form of Initial Comfort Letter]
The Company shall have furnished to the Representatives a
letter of Deloitte & Touche LLP, addressed to the Representatives and dated the
date of the Agreement, in form and substance satisfactory to the
Representatives, substantially to the effect set forth below:
(i) they are independent certified public
accountants with respect to the Company within the meaning of
Rule 101 of the Code of Professional Conduct of the AICPA and
its interpretations and rulings;
(ii) in their opinion, the audited financial
statements [and pro forma financial information] included in
the Registration Statement and the Prospectus (each as amended
or supplemented) or the documents incorporated by reference
therein and reported on by them comply in form in all material
respects with the accounting requirements of the Exchange Act
and the related published rules and regulations of the
Commission thereunder;
(iii) based upon a reading of the latest unaudited
financial statements made available by the Company, the
procedures of the AICPA for a review of interim financial
information as described in Statement of Auditing Standards
No. 71, reading of minutes and inquiries of certain officials
of the Company who have responsibility for financial and
accounting matters and certain other limited procedures
requested by the Representatives and described in detail in
such letter, nothing has come to their attention that causes
them to believe that (A) any unaudited financial statements
included in the Registration Statement and the Prospectus
(each as amended or supplemented) or the documents
incorporated by reference therein do not comply as to form in
all material respects with applicable accounting requirements,
(B) any material modifications should be made to the unaudited
financial statements included in the Registration Statement
and the Prospectus (each as amended or supplemented) or the
documents incorporated by reference therein for them to be in
conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited financial statements included in the Registration
Statement and the Prospectus (each as amended or supplemented)
or the documents incorporated by reference therein, or (C) the
information included under the headings ["Summary-Summary
Financial Data," "Selected Financial Data," "Ratio of Earnings
to Fixed Changes," and "Management-Executive Compensation"] is
not in conformity with the disclosure requirements of
Regulation S-K;
(iv) based upon the procedures detailed in such
letter with respect to the period subsequent to the date of
the last available balance sheet, including reading of minutes
and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters, nothing
has come to their
27
attention that causes them to believe that (A) at a specified
date not more than five business days prior to the date of
such letter, there was any change in capital stock, increase
in long-term debt or decrease in net current assets as
compared with the amounts shown in the ___________________ __,
199_ unaudited balance sheet included in the Registration
Statement and the Prospectus (each as amended or supplemented)
or the documents incorporated by reference therein, or (B) for
the period from ____________ __, 199_ to a specified date not
more than five business days prior to the date of such letter,
there were any decreases, as compared with the corresponding
period in the preceding year, in net sales, income from
operations or net income, except in all instances for changes,
increases or decreases that the Registration Statement and the
Prospectus (each as amended or supplemented) or the documents
incorporated by reference therein discloses have occurred or
may occur or which are set forth in such letter, in which case
the letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said explanation
is not deemed unnecessary by the Representatives;
(v) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company) set forth in the Registration Statement and the
Prospectus (each as amended or supplemented) or the documents
incorporated by reference therein agrees with the accounting
records of the Company, excluding any questions of legal
interpretation [; and] [.]
[(vi) on the basis of a reading of the unaudited
pro forma financial information included in the Registration
Statement and the Prospectus (each as amended or supplemented)
or the documents incorporated by reference therein, carrying
out certain specified procedures, reading of minutes and
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters and
proving the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the pro forma
financial information, nothing came to their attention which
caused them to believe that the pro forma financial
information does not comply in form in all material respects
with the applicable accounting requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation
of such information.]
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28
Exhibit A
Pricing Agreement
[Names and addresses of Representatives]
. . . . . . . . . , 19..
Ladies and Gentlemen:
MAPCO Inc., a Delaware corporation (the "Company"), proposes, subject to
the terms and conditions stated herein and in the Underwriting Agreement, dated
.......... , 19.. (the "Underwriting Agreement"), to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Shares
specified in Schedule II hereto (the "Designated Shares" consisting of Firm
Shares and any Optional Shares the Underwriters may elect to purchase). Each
of the provisions of the Underwriting Agreement is incorporated herein by
reference in its entirety, and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein; and
each of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Pricing Agreement, except that
each representation and warranty which refers to the Prospectus in Section 1 of
the Underwriting Agreement shall be deemed to be a representation or warranty
as of the date of the Underwriting Agreement in relation to the Prospectus (as
therein defined), and also a representation and warranty as of the date of this
Pricing Agreement in relation to the Prospectus as amended or supplemented
relating to the Designated Shares which are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in the provisions
of the Underwriting Agreement so incorporated by reference shall be deemed to
refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Shares, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, (a) the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time
and place and at the purchase price to the Underwriters set forth in Schedule
II hereto, the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto and (b) in the event and to the extent that
the Underwriters shall exercise the election to purchase Optional Shares, as
provided below, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly,
to purchase from the Company at the purchase price to the Underwriters set
forth in Schedule II hereto that portion of the number of Optional Shares as to
which such election shall have been exercised.
The Company hereby grants to each of the Underwriters the right to
purchase at their election up to the number of Optional Shares set forth
opposite the name of such Underwriter in Schedule I hereto on the terms
referred to in the paragraph above for the sole purpose of covering
over-allotments in the sale of the Firm Shares. Any such election to purchase
Optional Shares may be exercised by written notice from the Representatives to
the Company given within a period of 30 calendar days after the date of this
Pricing Agreement, setting forth the aggregate number of Optional Shares to be
purchased and the date on which such Optional Shares are to be delivered, as
determined by the Representatives, but in no event earlier than the First Time
of Delivery or, unless the Representatives and the Company otherwise agree in
writing, no earlier than two or later than ten business days after the date of
such notice.
29
If the foregoing is in accordance with your understanding, please sign and
return to us one for the Company and one for each of the Representatives plus
one for each counsel counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination, upon request, but
without warranty on the part of the Representatives as to the authority of the
signers thereof.
Very truly yours,
MAPCO INC.
By:...........................................
Name:
Title:
Accepted as of the date hereof:
Name(s) of Representatives(s)
By: . . . . . . . . . . . . . . . . . . . . . . . . . .
[ ]
On behalf of each of the Underwriters
- 2 -
30
SCHEDULE I
Maximum Number
of Optional
Number of Shares Which
Firm Shares May be
Underwriter to be Purchased Purchased
----------- --------------- ---------
Name(s) of Representative(s) . . . . . . . . . . . . . . . . . .
Names of other Underwriters . . . . . . . . . . . . . . . . . . .
--------------- ---------
Total . . . . . . . . . . . . . . . . . . . . . . . . . .
=============== =========
31
SCHEDULE II
Title of Designated Shares:
Number of Designated Shares:
Number of Firm Shares:
Maximum Number of Optional Shares:
Initial Offering Price to Public:
$........ per Share
Purchase Price by Underwriters:
$........ per Share
Commission Payable to Underwriters:
$........ per Share in Federal (same day) funds
Form of Designated Shares:
Definitive form, to be made available for checking [and packaging] at least
twenty-four hours prior to the Time of Delivery at the office of [The
Depository Trust Company or its designated custodian] [the Representative(s)]
Specified Funds for Payment of Purchase Price:
Federal (same day) funds
[Describe any blackout provisions with respect to the Designated Shares]
Time of Delivery:
......... a.m. (New York City time), .................., 19..
Closing Location:
Names and Addresses of Representative(s):
Designated Representative(s):
Address for Notices, etc.:
[Other Terms]* :
__________________________________
* A description of particular tax, accounting or other unusual features
(including any event risk provisions) of the Designated Shares should
be set forth, or referenced to an attached or accompanying
description, if necessary, to ensure agreement as to the terms of the
Designated Shares to be purchased and sold. Such a description might
appropriately be in the form in which such features will be described
in the Prospectus Supplement for the offering.
