_________ Preferred Securities
NORAM FINANCING { }
(a Delaware Trust)
___% Trust Originated Preferred Securities
(Liquidation Amount of $50 Per Preferred Security)
FORM OF UNDERWRITING AGREEMENT
[DATE]
[Underwriter]
[Address]
Dear Sirs:
NORAM FINANCING { } (the "Trust"), a statutory business
trust organized under the Business Trust Act (the "Delaware Act")
of the State of Delaware (Chapter 38, Title 12, of the Delaware
Code, 12 Del. C. Section 3801 ET SEQ.), NORAM ENERGY CORP., a
Delaware corporation (the "Company") and, together with the Trust
(the "Offerors"), confirm their agreement (the "Agreement") with
[Representative] and each of the other Underwriters named in
Schedule A hereto (collectively, the "Underwriters", which term
shall also include any underwriter substituted as hereinafter
provided in Section 10 hereof), for whom [Representative] is
acting as representative (in such capacity, [Representative]
shall hereinafter be referred to as the "Representative"), with
respect to the sale by the Trust and the purchase by the
Underwriters, acting severally and not jointly, of the respective
numbers of ___% Trust Originated Preferred Securities
(liquidation amount of $50 per preferred security) of the Trust
("Preferred Securities") set forth in said Schedule A and with
respect to the grant by the Trust to the Underwriters, acting
severally and not jointly, of the option described in
Section 2(b) hereof to purchase all or any part of _______
additional Preferred Securities to cover over-allotments, in each
case except as may otherwise be provided in the Pricing
Agreement, as hereinafter defined. The aforesaid _______ shares
of Preferred Securities [(the "Initial Securities")] to be
purchased by the Underwriters [and all or any part of the
__________ shares of Preferred Securities subject to the option
described in Section 2(b) hereof (the "Option Securities")] are
collectively hereinafter called the "[Designated] Securities".
The Preferred Securities will be guaranteed by the Company with
respect to distributions and payments upon liquidation,
redemption and otherwise (the "Preferred Securities Guarantee"),
pursuant to the Preferred Securities Guarantee Agreement (the
"Preferred Securities Guaranty Agreement"), dated as of
__________, 199_, between the Company and Bank of New York, as
Trustee, and entitled to the benefits of certain undertakings
described in the Prospectus with respect to the Company's
agreement pursuant to the Supplemental Indenture (as defined
herein) to pay all expenses relating to administration of the
Trust. The Preferred Securities and the related Preferred
Securities Guarantees are referred to herein as the "Securities".
Prior to the purchase and public offering of the
[Designated] Securities by the several Underwriters, the Offerors
and the Representative, acting on behalf of the several
Underwriters, shall enter into an agreement substantially in the
form of Exhibit A hereto (the "Pricing Agreement"). The Pricing
Agreement may take the form of an exchange of any standard form
of written telecommunication between the Offerors and the
Representative and shall specify such applicable information as
is indicated in Exhibit A hereto. The offering of the
[Designated] Securities will be governed by this Agreement, as
supplemented by the Pricing Agreement. From and after the date
of the execution and delivery of the Pricing Agreement, this
Agreement shall be deemed to incorporate the Pricing Agreement.
The Offerors have filed with the Securities and
Exchange Commission (the "Commission") a registration statement
on Form S-3 (No. 33-__) and a related preliminary prospectus for
the registration under the Securities Act of 1933 (the "1933
Act") of (i) the Preferred Securities, (ii) the Preferred
Securities Guarantee, and (iii) $_________ million aggregate
principal amount of Subordinated Debt Securities (the
"Subordinated Debt Securities") to be issued and sold to the
Trust by the Company, have filed such amendments thereto, if any,
and such amended preliminary prospectuses as may have been
required to the date hereof, and will file such additional
amendments thereto and such amended prospectuses as may hereafter
be required. Such registration statement (as amended, if
applicable) and the prospectus constituting a part thereof
(including, in each case, all documents incorporated or deemed to
be incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act and the information, if any, deemed
to be part thereof pursuant to Rule 430A(b) of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act
Regulations")), as from time to time amended or supplemented
pursuant to the 1933 Act, the Securities Exchange Act of 1934, as
amended (the "1934 Act") or otherwise, are hereinafter referred
to as the "Registration Statement" and the "Prospectus",
respectively, except that if any revised prospectus shall be
provided to the Underwriters by the Offerors for use in
connection with the offering of the [Designated] Securities,
which differs from the Prospectus on file at the Commission at
the time the Registration Statement becomes effective (whether or
not such revised prospectus is required to be filed by the
Offerors pursuant to Rule 424(b) of the 1933 Act Regulations),
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the term "Prospectus" shall refer to such revised prospectus from
and after the time it is first provided to the Underwriters for
such use. All references in this Agreement to financial
statements and schedules and other information that is
"contained," "included" or "stated" in the Registration Statement
or the Prospectus (and all other references of like import) shall
be deemed to mean and include all such financial statements and
schedules and other information that are or are 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 1934 Act that is or is
deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be.
The Offerors understand that the Underwriters propose
to make a public offering of the Securities as soon as the
Representative deems advisable after the Pricing Agreement has
been executed and delivered, and the Declaration (as defined
herein), the Indenture (as defined herein), and the Preferred
Securities Guarantee Agreement have been qualified under the
Trust Indenture Act of 1939, as amended the "1939 Act"). The
entire proceeds from the sale of the Securities will be combined
with the entire proceeds from the sale by the Trust to the
Company of its common securities (the "Common Securities")
guaranteed by the Company, to the extent set forth in the
Prospectus, with respect to distributions and payments upon
liquidation, redemption and maturity (the "Common Securities
Guarantee" and together with the Preferred Securities Guarantee,
the "Guarantees") pursuant to the Common Securities Guarantee
Agreement (the "Common Securities Guarantee Agreement" and,
together with the Preferred Securities Guarantee Agreement, the
"Guarantee Agreements"), dated as of ___________, 199_, between
the Company and the Bank of New York, as Trustee, and will be
used by the Trust to purchase the Subordinated Debt Securities
issued by the Company. The Preferred Securities and the Common
Securities will be issued pursuant to the amended and restated
declaration of trust of the Trust, dated as of _______________,
199_ (the "Declaration"), among the Company, as Sponsor, the
trustees named therein (the "Trustees") and the holders from time
to time of undivided beneficial interests in the assets of the
Trust. The Subordinated Debt Securities will be issued pursuant
to an indenture, dated as of _____________, 199_ (the "Base
Indenture"), between the Company and the Bank of New York as
trustee (the "Debt Trustee"), and a supplement to the Base
Indenture, dated as of _____________, 199_ (the "Supplemental
Indenture," and together with the Base Indenture and any other
amendments or supplements thereto, the "Indenture"), between the
Company and the Debt Trustee.
Section 1. REPRESENTATIONS AND WARRANTIES.
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(a) The Offerors jointly and severally represent
and warrant to each Underwriter as of the date hereof and as of
the date of the Pricing Agreement (such latter date being
hereinafter referred to as the "Representation Date") as follows:
(i) At the time the Registration Statement
becomes effective and at the Representation Date, the
Registration Statement will comply in all material respects
with the requirements of the 1933 Act, the 1933 Act
Regulations, the 1934 Act, the regulations of the Commission
under the 1934 Act (the "1934 Act Regulations"), and the
1939 Act and the rules and regulations of the Commission
under the 1939 Act (the "1939 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 not misleading.
The Prospectus, at the Representation Date (unless the term
"Prospectus" refers to a prospectus that has been provided
to the Underwriters by the Trust for use in connection with
the offering of the Securities and that differs from the
Prospectus on file at the Commission at the time the
Registration Statement becomes effective, in which case, at
the time it is first provided to the Underwriters for such
use) and at Closing Time referred to in Section 2 hereof,
will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however,
that the representations and warranties in this subsection
shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon
and in conformity with information furnished to the Offerors
in writing by any Underwriter through [Representative]
expressly for use in the Registration Statement or
Prospectus.
(ii) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, there has
been no material adverse change or any development involving
a prospective material adverse change in the financial
condition or results of operation of the Company and its
subsidiaries taken as a whole.
Section 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) On the basis of the representations and
warranties herein contained and subject to the terms and
conditions herein set forth, the Trust agrees to sell to each
Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Trust, at
the price per security set forth in the Pricing Agreement, the
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number of [Initial] Securities set forth in Schedule A opposite
the name of such Underwriter (except as otherwise provided in the
Pricing Agreement), plus any additional number of [Initial]
Securities that such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
The purchase price per security to be paid by the
several Underwriters for the [Designated] Securities shall be an
amount equal to the initial public offering price. The initial
public offering price per Preferred Security shall be a fixed
price to be determined by agreement between the Representative
and the Offerors. The initial public offering price and the
purchase price, when so determined, shall be set forth in the
Pricing Agreement. In the event that such prices have not been
agreed upon and the Pricing Agreement has not been executed and
delivered by all parties thereto by the close of business on the
fourth business day following the date of this Agreement, this
Agreement shall terminate forthwith, without liability of any
party to any other party, unless otherwise agreed to by the
Offerors and the Representative. As compensation to the
Underwriters for their commitments hereunder and in view of the
fact that the proceeds of the sale of the Preferred Securities
will be used to purchase the Subordinated Debt Securities of the
Company, the Company hereby agrees to pay at Closing Time (as
defined below) to the Representative, for the accounts of the
several Underwriters, a commission per Preferred Security
determined by agreement between the Representative and the
Company for the Preferred Securities to be delivered by the Trust
hereunder at Closing Time or relevant Date of Delivery (as
defined below), as the case may be. The commission, when so
determined, shall be set forth in the Pricing Agreement.
[(b) In addition, on the basis of the
representations and warranties herein contained and subject to
the terms and conditions herein set forth, the Trust hereby
grants an option to the Underwriters, severally and not jointly,
to purchase up to an additional ______ Preferred Stock at the
price per share set forth in the Pricing Agreement, less an
amount per share equal to any dividends declared by the Company
and payable on the [Initial] Securities but not payable on the
Option Securities. The option hereby granted will expire 30 days
after the Representation Date and may be exercised in whole or in
part from time to time only for the purpose of covering over-
allotments which may be made in connection with the offering and
distribution of the [Initial] Securities upon notice by the
Representative to the Trust setting forth the number of Option
Securities as to which the several Underwriters are then
exercising the option and the time and date of payment and
delivery for such Option Securities. Any such time and date of
delivery (a "Date of Delivery") shall be determined by the
Representative, but shall not be later than seven full business
days after the exercise of said option, nor in any event prior to
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the Closing Time, as hereinafter defined, unless otherwise agreed
by the Representative and the Trust. If the option is exercised
as to all or any portion of the Option Securities, each of the
Underwriters, acting severally and not jointly, will purchase
that proportion of the total number of Option Securities then
being purchased which the number of [Initial] Securities set
forth in Schedule A opposite the name of such Underwriter bears
to the total number of [Initial] Securities (except as otherwise
provided in the Pricing Agreement), subject in each case to such
adjustments as the Representative in its discretion shall make to
eliminate any sales or purchases of fractional securities.]
(c) Payment of the purchase price for, and
delivery of certificates for, the [Initial] Securities shall be
made at the office of _______________, or at such other place as
shall be agreed upon by the Representative and the Trust, at
10:00 A.M. New York time on the fifth business day (unless
postponed in accordance with the provisions of Section 10)
following the fifth business day after execution of the Pricing
Agreement, or such other time not later than ten business days
after such date as shall be agreed upon by the Representative,
the Trust and the Company (such time and date of payment and
delivery being herein called "Closing Time"). [In addition, in
the event that any or all of the Option Securities are purchased
by the Underwriters, payment of the purchase price for, and
delivery of certificates for, such Option Securities shall be
made at the above-mentioned offices of _______________, or at
such other place as shall be agreed upon by the Representative
and the Trust, on each Date of Delivery as specified in the
notice from the Representative to the Trust.] Payment shall be
made to the Company by certified or official bank check or checks
drawn in New York Clearing House funds or similar next day funds
payable to the order of the Trust to an account designated by the
Trust, against delivery to the Representative for the respective
accounts of the Underwriters of certificates for the [Designated]
Securities to be purchased by them. Certificates for the
[Initial] Securities [and the Option Securities, if any,] shall
be in such denominations and registered in such names as the
Representative may request in writing at least two business days
before the Closing Time or the relevant Date of Delivery, as the
case may be. It is understood that each Underwriter has
authorized the Representative, for its account, to accept
delivery of, receipt for, and make payment of the purchase price
for, the [Initial] Securities [and the Option Securities, if
any,] which it has agreed to purchase. [Representative],
individually and not as representative of the Underwriters, may
(but shall not be obligated to) make payment of the purchase
price for the [Initial] Securities [or the Option Securities, if
any,] to be purchased by any Underwriter whose check has not been
received by the Closing Time or the relevant Date of Delivery, as
the case may be, but such payment shall not relieve such
Underwriter from its obligations hereunder.
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The certificates for the [Initial] Securities [and
the Option Securities, if any,] will be made available for
examination and packaging by the Representative not later than
10:00 A.M. on the last business day prior to the Closing Time or
the relevant Date of Delivery, as the case may be.
At the Closing Time or each Date of Delivery, as
the case may be, the Company will pay, or cause to be paid, the
commission payable at such time to the Underwriters under
Section 2 hereof by certified or official bank check or checks
payable to [Representative] in New York Clearing House funds or
other similar next day funds.
Section 3. COVENANTS OF THE OFFERORS. Each of the
Offerors jointly and severally covenants with each Underwriter as
follows:
(a) The Offerors will notify the Representative
immediately, and confirm the notice in writing, (i) of the
effectiveness of the Registration Statement and any amendment
thereto (including any post-effective amendment), (ii) of the
receipt of any comments from the Commission, (iii) of any request
by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or for
additional information, and (iv) 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. The Offerors will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible
moment.
(b) The Offerors will give the Representative
notice of their intention to file or prepare any amendment to the
Registration Statement (including any post-effective amendment)
or any amendment or supplement to the Prospectus (including any
revised prospectus which the Offerors propose for use by the
Underwriters in connection with the offering of the Preferred
Securities which differs from the prospectus on file at the
Commission at the time the Registration Statement becomes
effective, whether or not such revised prospectus is required to
be filed pursuant to Rule 424(b) of the 1933 Act Regulations),
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish the Representative with copies of any such amendment or
supplement a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file any such
amendment or supplement or use any such prospectus to which the
Representative or counsel for the Underwriters shall reasonably
object unless the Company shall conclude that such amendment or
supplement must be filed in accordance with applicable law.
Subject to the foregoing, the Offerors will promptly prepare a
supplement to the Prospectus to reflect the terms of the
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[Designated] Securities and the terms of the Offering. The
Offerors will file the Prospectus as so supplemented pursuant to
Rule 424(b) under the Act not later than the Commission's close
of business on the second business day following the execution
and delivery of this Agreement, or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Act.
(c) The Offerors will furnish to the
Representatives copies of the Registration Statement, including
all exhibits thereto, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available
and in such quantities as are reasonably requested.
(d) If any event shall occur as a result of which
it is necessary to amend or supplement the Prospectus in order to
make the Prospectus not misleading in the light of the
circumstances existing at the time it is delivered to a
purchaser, the Offerors will forthwith amend or supplement the
Prospectus in accordance with paragraph (b) above so that, as so
amended or supplemented, the Prospectus will not include an
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances existing at the time it is delivered
to a purchaser, not misleading, and the Offerors will furnish to
the Underwriters a reasonable number of copies of such amendment
or supplement.
(e) The Offerors will endeavor, in cooperation
with the Underwriters, to qualify the Preferred Securities and
Subordinated Debt Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions
of the United States as the Representative may designate;
provided, however, that each of the Offerors shall not be
obligated to qualify as a foreign corporation in any jurisdiction
in which it is not so qualified.
(f) The Trust will make generally available to
its security holders as soon as practicable, an earnings
statement (in form complying with the provisions of Rule 158 of
the 1933 Act Regulations) covering a twelve-month period
beginning not later than the first day of the Trust's fiscal
quarter next following the "effective date" (as defined in said
Rule 158) of the Registration Statement.
(g) The Offerors will use their reasonable
efforts to effect the listing of the Preferred Securities on the
[New York Stock Exchange]; if the Preferred Securities are
exchanged for Subordinated Debt Securities, the Company will use
its reasonable efforts to effect the listing of the Subordinated
Debt Securities on the exchange on which the Preferred Securities
were then listed.
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(h) During a period of 30 days from the date of
the Pricing Agreement, neither the Trust nor the Company will,
without the Representative's prior written consent, directly or
indirectly, sell, offer to sell, grant any option for the sale
of, or otherwise dispose of, any Preferred Securities, any
security convertible into or exchangeable into or exercisable for
Preferred Securities or any equity securities substantially
similar to the Preferred Securities (except for Preferred
Securities issued pursuant to this Agreement).
Section 4. PAYMENT OF EXPENSES. The Company will pay
all expenses incident to the performance of each Offeror's
obligations under this Agreement, including, but not limited to,
(i) the printing and filing of the Registration Statement as
originally filed and of each amendment thereto; (ii) the printing
of this Agreement and the Pricing Agreement; (iii) the
preparation, issuance of the certificates for the Preferred
Securities to the Underwriters; (iv) the fees and disbursements
of the Company's and the Trust's counsel and accountants; (v) the
qualification of the Preferred Securities and Subordinated Debt
Securities under securities laws in accordance with the
provisions of Section 3(e) hereof, including filing fees and the
fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of
any blue sky survey and any legal investment survey; (vi) the
printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each amendment
thereto, of each preliminary prospectus, and of the Prospectus
and any amendments or supplements thereto; (vii) the printing and
delivery to the Underwriters of copies of any blue sky survey and
any legal investment survey; (viii) the fee of the National
Association of Securities Dealers, Inc.; (ix) the fees and
expenses of the Debt Trustee, including the fees and
disbursements of counsel for the Debt Trustee in connection with
the Indenture and the Subordinated Debt Securities; (x) the fees
and expenses of the Property Trustee and Delaware Trustee,
including the fees and disbursements of counsel for the Property
Trustee and Delaware Trustee in connection with the Declaration
and the Certificate of Trust; (xi) any fees payable in connection
with the rating of the Preferred Securities and Subordinated Debt
Securities; (xii) the fees and expenses incurred in connection
with the listing of the Preferred Securities and, if applicable,
the Subordinated Debt Securities on the [New York Stock
Exchange]; (xiii) the cost and charges of any transfer agent or
registrar; and (xiv) the cost of qualifying the Preferred
Securities with The Depository Trust Company.
If this Agreement is terminated by the
Representative in accordance with the provisions of Section 5 or
Section 9 hereof, the Company shall reimburse the Underwriters
for all of their reasonable out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the
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Underwriters, which shall not exceed the amount set forth in the
applicable Terms Agreement.
Section 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS.
The obligations of the Underwriters hereunder are subject to the
accuracy of the representations and warranties of the Offerors
herein contained, to the performance by the Offerors of their
obligations hereunder, and to the following further conditions:
(a) The Registration Statement shall have become
effective not later than 5:30 P.M. on the date hereof, or with
the consent of the Representative, at a later time and date, not
later, however, than 5:30 P.M. on the first business day
following the date hereof, or at such later time and date as may
be approved by the Representative; and at Closing Time no stop
order suspending the effectiveness of the Registration Statement
shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission. The Prospectus shall
have been filed with the Commission pursuant to Rule 424(b)
within the applicable time period prescribed for such filing by
the 1933 Regulations and in accordance with Section 3(b) and
prior to Closing Time the Offerors shall have provided evidence
satisfactory to the Representative of such timely filing.
(b) At Closing Time the Representative shall have
received:
(1) The favorable opinion, dated as of
Closing Time, of ______________, counsel for the Offerors, in
form and substance reasonably satisfactory to counsel for the
Underwriters, substantially in the form set forth in Annex 1.
(2) The favorable opinion, dated as of
Closing Time, of Xxxxxx Xxxxxx, Xx., Esq., General Counsel for
the Company, in form and substance satisfactory to counsel for
the Underwriters, substantially in the form set forth in Annex 2.
(3) The favorable opinion, dated as of
Closing Time, of ______________, counsel of Bank of New York, as
Property Trustee under the Declaration, in form and substance
satisfactory to counsel for the Underwriters, substantially in
the form of Annex 3.
(4) The favorable opinion, dated as of
Closing Time, of_________________, counsel for the Underwriters,
in form and substance satisfactory to the Underwriters.
(c) At Closing Time, since the date of the
Pricing Agreement (i) there shall not have occurred any change,
or any development involving a prospective change, in or
affecting particularly the business or properties of the Company
and any of its subsidiaries, taken as a whole, which, in the
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judgment of the Representatives, materially impairs the
investment quality of the [Designated] Securities and (ii) there
has not been any decrease in the ratings of any of the debt
securities of the Company or of the Preferred Securities by any
"nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) and no such
organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its
ratings of any of the debt securities of the Company or of the
Preferred Securities.
(d) At the time the execution of this Agreement,
the Representative shall have received from Coopers & Xxxxxxx
L.L.P. a letter dated such date, in form and substance
satisfactory to the Representative, to the effect that:
(i) they are independent public accountants
with respect to the Company and its consolidated
subsidiaries within the meaning of the 1933 Act and the 1933
Act Regulations; and the Trust is and will be treated as a
consolidated subsidiary of the Company pursuant to generally
accepted accounting principles;
(ii) in their opinion, the consolidated
financial statements and any supplementary financial
information and schedules audited (and, if applicable,
prospective financial statements and/or pro forma financial
information examined) by them and included or incorporated
by reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act or the
1934 Act and the related published rules and regulations
thereunder; and if applicable, they have made a review in
accordance with standards established by the American
Institute of Certified Public Accountants of the
consolidated interim financial statements, selected
financial data, statements and/or condensed financial
statements derived from audited financial statements of the
Company for the periods specified in such letter, as
indicated in their reports thereon, copies of which have
been furnished to the Representatives;
(iii) based upon limited procedures set forth
in detail in such letter, nothing has come to their
attention which causes them to believe that
(A) the unaudited consolidated
financial statements and supporting schedules of the Company
included in the Registration Statement do not comply as to
form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations or
are not presented in conformity with accepted accounting
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principles applied on a basis substantially consistent with
that of the audited financial statements included in the
Registration Statement, or
(B) the unaudited amounts of revenues,
net income and net income per share set forth under ["NORAM
ENERGY CORP. Summary Financial Information"] in the
Prospectus were not determined on a basis substantially
consistent with that used in determining the corresponding
amounts in the audited financial statements included in the
Registration Statement, or
(C) at a specified date not more than
five days prior to the date of this Agreement, there has
been any change in the capital stock of the Company and its
subsidiaries or any increase in the consolidated long-term
debt of the Company and its subsidiaries or any decrease in
consolidated net current assets or net assets as compared
with the amounts shown on the date of the most recent
consolidated balance sheet included in or incorporated by
reference in the Registration Statement and the Prospectus
(, 199_ balance sheet included in the Registration
Statement) or, during the period from the date of the most
recent consolidated balance sheet included in or
incorporated by reference in the Registration Statement and
the Prospectus to a specified date not more than five days
prior to the date of this Agreement, there were any
decreases, as compared with the corresponding period in the
preceding year, in consolidated revenues, net income or net
income per share of the Company and its subsidiaries, except
in all instances for changes, increases or decreases which
the Registration Statement and the Prospectus disclose have
occurred or may occur; and
(iv) in addition to the examination referred
to in their opinions and the limited procedures referred to
in clause (iii) above, they have carried out certain
specified procedures, not constituting an audit, with
respect to certain amounts, percentages and financial
information which are included in the Registration Statement
and Prospectus, or incorporated therein by reference, and
which are specified by the Representative, and have found
such amounts, percentages and financial information to be in
agreement with the relevant accounting, financial and other
records of the Company and its subsidiaries, identified in
such letter.
(e) At Closing Time, the Representative shall
have received from Coopers & Xxxxxxx L.L.P. a letter, dated as of
Closing Time, to the effect that they reaffirm the statements
made in the letter furnished pursuant to subsection (d) of this
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Section, except that the specified date referred to shall be a
date not more than five days prior to Closing Time.
(f) At the Closing Time, the Representative shall
have received (i) a certificate, dated as of the Closing Time, of
an officer of the Company, and (ii) a certificate, dated as of
the Closing Time, of a Trustee of the Trust, in each case in
which such officers shall state that, to the best of their
knowledge after reasonable investigation, the representations and
warranties of the Offerors in this Agreement are true and
correct, that the Offerors have complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Time, that no stop order
suspending the effectiveness of the Registration Statement is in
effect and no proceedings for that purpose are pending or are
contemplated by the Commission and that, 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 operations of the Company and any of its subsidiaries,
taken as a whole, except as set forth in or contemplated by the
Prospectus.
(g) At Closing Time and each Date of Delivery, if
any, counsel for the Underwriters shall have been furnished with
such documents and opinions as they may require for the purpose
of enabling them to pass upon the issuance and sale of the
Preferred Securities as herein contemplated and related
proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the
Offeror, in connection with the issuance and sale of the
Preferred Securities as herein contemplated shall be satisfactory
in form and substance to the Representative and counsel for the
Underwriters.
[(h) In the event that the Underwriters exercise
their option provided in Section 2(b) hereof to purchase all or
any portion of the Option Securities, the representations and
warranties of the Offerors contained herein and the statements in
any certificates furnished by the Offerors hereunder shall be
true and correct as of each Date of Delivery and, at the relevant
Date of Delivery, the Representative shall have received:
(1) The certificates, each dated such Date of Delivery, of
the relevant officer of the respective Offeror confirming
that the respective certificates delivered at the Closing
Time pursuant to Section 5(f) hereof remains true and
correct as of such Date of Delivery.
(2) The favorable opinion of ______________, counsel for
the Offerors, in form and substance satisfactory to counsel
for the Underwriters, dated such Date of Delivery, relating
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to the Option Securities to be purchased on such Date of
Delivery, and otherwise to the same effect as the opinion
required by Sections 5(b)(1).
(3) The favorable opinion of Xxxxxx Xxxxxx, Xx., Esq.,
General Counsel, in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Securities to be purchased on such
Date of Delivery and otherwise to the same effect as the
opinion required by Sections 5(b)(2).
(4) The favorable opinion of _________________, counsel of
the Bank of New York, in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Securities to be purchased on such
Date of Delivery and otherwise to the same effect as the
opinion required by Sections 5(b)(3).
(5) The favorable opinion of _____________________, special
counsel for Underwriters, dated such Date of Delivery,
relating to the Option Securities to be purchased on such
Date of Delivery and otherwise to the same effect as the
opinion required by Sections 5(b)(4).
(6) A letter from Coopers & Xxxxxxx L.L.P., in form and
substance satisfactory to the Representative and dated such
Date of Delivery, substantially the same in form and
substance as the letter furnished to the Representative
pursuant to Section 5(d) hereof, except that the "specified
date" in the letter furnished pursuant to this Section
5(h)(8) shall be a date not more than five days prior to
such Date of Delivery.]
(i) At Closing Time, the Preferred Securities and
the Subordinated Debt Securities shall be rated in one of the
four highest rating categories for long-term debt ("Investment
Grade") by any nationally recognized statistical rating agency,
and the Trust shall have delivered to the Representative a
letter, dated the Closing Time, from such nationally recognized
statistical rating agency, or other evidence satisfactory to the
Representative, confirming that the Preferred Securities and the
Subordinated Debt Securities have Investment Grade ratings.
(j) At the Closing Time, the Preferred Securities
shall have been approved for listing on the [New York Stock
Exchange] upon notice of issuance.
If any condition specified in this Section shall not
have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Representative by notice to
the Offerors at any time at or prior to Closing Time, and such
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termination shall be without liability of any party to any other
party except as provided in Section 4 hereof.
Section 6. INDEMNIFICATION
(a) The Offerors agree to jointly and severally
indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, arising
out of any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or
any amendment thereto), including the information deemed to
be the Registration Statement pursuant to Rule 430A(b) of
the 1933 Act Regulations, if applicable, or the omission or
alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein
not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
preliminary prospectus or the Prospectus (or any amendment
or supplement thereto) or the omission or the alleged
omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, to the
extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission,
if such settlement is effected with the written consent of
the Company; and
(iii) against any and all reasonable expense
as incurred (including, subject to Section 6(c) hereof, the
fees and disbursements of counsel chosen by
[Representative]), in investigating, preparing or defending
against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement
or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply
to any loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity
with written information furnished to the Trust or the Company by
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any Underwriter through [Representative] expressly for use in the
Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto); and PROVIDED, FURTHER, that this indemnity
agreement with respect to any preliminary prospectus shall not
inure to the benefit of any Underwriter from whom the person
asserting any such losses, liabilities, claims, damages or
expenses purchased Securities, or any person controlling such
Underwriter, if the Offerors sustain the burden that a copy of
the Prospectus (as then amended or supplemented if the Company
shall have furnished any such amendments or supplements thereto),
but excluding documents incorporated or deemed to be incorporated
by reference, was not sent or given by or on behalf of such
Underwriter to such person, if such is required by law, at or
prior to the written confirmation of the sale of such Securities
to such person and if the Prospectus (as so amended or
supplemented, but excluding documents incorporated or deemed to
be incorporated by reference therein) would have corrected the
defect giving rise to such loss, liability, claim, damage or
expense, it being understood that this proviso shall have no
application if such defect shall have been corrected in a
document which is incorporated or deemed to be incorporated by
reference in the Prospectus.
(b) The Company agrees to indemnify the Trust
against all loss, liability, claim, damage and expense
whatsoever, as due from the Trust under Section 6(a) hereunder.
(c) Each Underwriter severally agrees to
indemnify and hold harmless the Offerors, their directors,
trustees, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Offerors
within the meaning of Section 15 of the 1933 Act against any and
all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with
written information furnished to the Offerors by such Underwriter
through [Representative] expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement
thereto).
(d) Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may
be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any
liability which it may have otherwise than on account of this
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indemnity agreement. An indemnifying party may participate at
its own expense in the defense of any such action. If it so
elects within a reasonable time after receipt of such notice, an
indemnifying party, jointly with any other indemnifying parties
receiving such notice, may assume the defense of such action with
counsel satisfactory to such indemnifying party (who shall not,
except with the consent of the indemnified party, be counsel to
the indemnifying party), unless such indemnified parties
reasonably object to such assumption on the ground that there may
be legal defenses available to them which are different from or
in addition to those available to such indemnifying party. If an
indemnifying party assumes the defense of such action, the
indemnifying parties shall not be liable for any fees and
expenses of counsel for the indemnified parties incurred
thereafter in connection with such action. In no event shall the
indemnifying parties be liable for fees and expenses of more than
one counsel (in addition to any local counsel) separate from
their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or
circumstances. The indemnifying party or parties shall not be
liable under this Agreement with respect to any settlement made
by any indemnified party or parties without prior written consent
by the indemnifying party or parties to such settlement.
Section 7. CONTRIBUTION. In order to provide for just
and equitable contribution in circumstances in which the
indemnity agreement provided for in Section 6 hereof is for any
reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Offerors
and the Underwriters shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature
contemplated by said indemnity agreement incurred by the Offerors
and one or more of the Underwriters, as incurred, in such
proportions that the Underwriters are responsible for that
portion represented by the percentage that the underwriting
compensation paid by the Company appearing on the cover page of
the Prospectus bears to the initial public offering price
appearing thereon and the Offerors are responsible for the
balance; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
0000 Xxx) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For
purposes of this Section, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act
shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company who
signed the Registration Statement, each trustee of the Trust and
each person, if any, who controls an Offeror within the meaning
of Section 15 of the 1933 Act shall have the same rights to
contribution as the Offerors.
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Section 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS
TO SURVIVE DELIVERY. All representations, warranties and
agreements contained in this Agreement and the Pricing Agreement,
or contained in certificates of officers or Trustees of the
Offerors submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made by or
on behalf of any Underwriter or controlling person, or by or on
behalf of the Offerors and shall survive delivery of the
Preferred Securities to the Underwriters.
Section 9. TERMINATION OF AGREEMENT.
(a) The Representative may terminate this
Agreement, by notice to the Offerors, at any time at or prior to
Closing Time (i) if there has been, since the date of this
Agreement or since the respective dates as of which information
is given in the Registration Statement, any material adverse
change or any development involving a prospective material
adverse change, in the financial condition or results of
operations of the Company and its subsidiaries, taken as a whole,
whether or not arising in the ordinary course of business, or
(ii) if there has occurred any outbreak of hostilities or
material escalation thereof or other calamity or crisis the
effect of which is such as to make it, in the judgment of the
Representative, impracticable to market the [Designated]
Securities, (iii) if trading in the [Designated] Securities has
been suspended by the Commission, or if trading generally on
[New York Stock Exchange] has been suspended, limited or
restricted or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices for securities have been
required, by said exchange or by order of the Commission or any
other governmental authority, or if a banking moratorium has been
declared by either Federal or New York authorities or (iv) if
there has been any decrease in the ratings of any of the debt
securities of the Company or of the Preferred Securities by any
"nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) and such
organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its
rating of any of the debt securities of the Company or of the
Preferred Securities.
(b) If this Agreement is terminated pursuant to
this Section, such termination shall be without liability of any
party to any other party except as provided in Section 4 hereof.
Section 10. DEFAULT BY ONE OR MORE OF THE
UNDERWRITERS. If one or more of the Underwriters shall fail at
Closing Time to purchase the [Initial] Securities that it or they
are obligated to purchase under this Agreement and the Pricing
Agreement (the "Defaulted Securities"), the Representative shall
have the right, within 24 hours thereafter, to make arrangements
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for one or more of the non-defaulting Underwriters, or any other
Underwriters, to purchase all, but not less than all, of the
Defaulted Securities in such amounts as may be agreed upon and
upon the terms herein set forth; if, however, the Representatives
shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does
not exceed 10% of the number of [Initial] Securities, each
of the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount
thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds
10% of the number of [Initial] Securities, this Agreement
shall terminate without liability on the part of any non-
defaulting Underwriter.
No action taken pursuant to this Section shall relieve
any defaulting Underwriter from liability in respect of its
default.
In the event of any such default which does not result
in a termination of this Agreement, either the Representative, or
the Offerors shall have the right to postpone Closing Time for a
period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectus or in any
other documents or arrangements.
Section 11. NOTICES. All notices and other
communications hereunder shall be in writing and shall be deemed
to have been duly given if mailed or transmitted by a standard
form of telecommunication. Notices to the Underwriters shall be
directed to the Representative at ______________________________
_________________________________________________; notices to the
Trust and the Company shall be directed to them at 0000 Xxxxx
Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxx 00000, attention of Xxxxxx
Xxxxxx, Xx., Esq., General Counsel.
Section 12. PARTIES. This Agreement and the Pricing
Agreement shall each inure to the benefit and be binding upon the
Underwriters and the Trust and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement or
the Pricing Agreement is intended or shall be construed to give
any person, firm or corporation, other than the Underwriters and
the Trust and the Company and their respective successors and the
controlling persons and officers, directors and trustees referred
to in Sections 6 and 7 and their heirs and legal representatives,
any legal or equitable right, remedy or claim under or in respect
of this Agreement or the Pricing Agreement or any provision
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herein or therein contained. This Agreement and the Pricing
Agreement and all conditions and provisions hereof and thereof
are intended to be for the sole and exclusive benefit of the
Underwriters and the Trust and the Company and their respective
successors, and said controlling persons and officers, directors
and trustees and their heirs and legal representatives, and for
the benefit of no other person, firm or corporation. No
purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
Section 13. GOVERNING LAW AND TIME. This Agreement
and the Pricing Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Except as
otherwise set forth herein, specified times of day refer to New
York City time.
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If the foregoing is in accordance with your
understanding of our agreement, please sign an return to the
Trust a counterpart hereof, whereupon this instrument, along with
all counterparts, will become a binding agreement between the
Underwriters and the Trust and the Company in accordance with its
terms.
Very truly yours,
NORAM ENERGY CORP.
By________________________________
Title:
NORAM FINANCING { }
By_________________________________
Title: Trustee
By________________________________
Title: Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written:
[REPRESENTATIVE]
By______________________________
Authorized Signatory
For itself and as Representative of the other
Underwriters named in Schedule A hereto.
-21-
SCHEDULE A
Number of
Name of Underwriter Securities
Total . . . . . . . . . . . . . . . . . . . . __________
-22-
EXHIBIT A
_______________ Preferred Securities
NORAM FINANCING { }
(a Delaware business trust)
____% Trust Originated Preferred Securities
(Liquidation Amount of $50 Per Security)
PRICING AGREEMENT
[UNDERWRITER] _____________, 199_
[ADDRESS]
Dear Sirs:
Reference is made to the Underwriting Agreement, dated
____________, 199_ (the "Underwriting Agreement"), relating to
the purchase by the several Underwriters named in Schedule A
thereto, for whom ___________________________________ is acting
as representative (the "Representative"), of the above ___% Trust
Originated Preferred Securities (the "Preferred Securities"), of
NORAM FINANCING { }, a Delaware business trust (the "Trust").
Pursuant to Section 2 of the Underwriting Agreement,
the Trust and NorAm Energy Corp., a Delaware corporation (the
"Company"), agree with each Underwriter as follows:
1. The initial public offering price per
security for the Preferred Securities, determined as
provided in said Section 2, shall be $50.00.
2. The purchase price per security for the
Preferred Securities to be paid by the several Underwriters
shall be $50.00, being an amount equal to the initial public
offering price set forth above; [PROVIDED that the purchase
price per Preferred Security for any Option Securities (as
defined in the Purchase Agreement) purchased upon exercise
of the over-allotment option described in Section 2(b) of
the Purchase Agreement shall be reduced by an amount per
share equal to any distribution declared by the Trust and
payable on the [Initial] Securities (as defined in the
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Purchase Agreement) but not payable on the Option
Securities.]
3. The compensation per Preferred Security to be
paid by the Company to the several Underwriters in respect
of their commitments hereunder shall be $______; provided,
however, that the compensation per Preferred Security for
sales of __________ or more Preferred Securities to a single
purchaser shall be $_______.
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to the
Trust a counterpart hereof, whereupon this instrument, along with
all counterparts, will become a binding agreement between the
Underwriters and the Trust and the Company in accordance with its
terms.
Very truly yours,
NORAM ENERGY CORP.
By________________________________
Title:
NORAM FINANCING { }
By________________________________
Title: Trustee
By________________________________
Title: Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written:
[REPRESENTATIVE]
By______________________________
Authorized Signatory
For itself and as Representative of the other
Underwriters named in the Underwriting Agreement.
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