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EXHIBIT 1.1
XXXX-XXXXX CORPORATION
COMMON STOCK
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UNDERWRITING AGREEMENT
February ___, 2000
Xxxxxx Brothers Inc.
Xxxxxxx, Xxxxx & Co.
As Representatives of the several
Underwriters named in Schedule I
c/x Xxxxxx Brothers Inc.
3 World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxx-XxXxx Corporation, a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
shares of the Company's common stock (the "Firm Shares") and, at the
election of the Underwriters, up to additional shares of the Company's
common stock (the "Optional Shares") (the Firm Shares and the Optional Shares
which the Underwriters elect to purchase pursuant to Section 2 hereof are herein
collectively referred to as the "Shares").
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) Two registration statements on Form S-3 (File Nos. 333-76951 and
333-94091) in respect of various debt and equity securities of the Company,
including the Shares, have been filed with the Securities and Exchange
Commission (the "Commission"), pursuant to Rule 415 under the Securities
Act of 1933, as amended (the "Act"); such registration statements and any
post-effective amendment thereto, each in the form heretofore delivered to
the Representatives, and, excluding exhibits thereto, but including all
documents incorporated by reference in the base prospectus included in the
later such registration statement, have been declared effective by the
Commission in such form; no other document with respect to such
registration statements or document incorporated by reference therein has
heretofore been filed with the Commission; and no stop order suspending the
effectiveness of such registration statements or any post-effective
amendment thereto has been issued and no proceeding for that purpose has
been
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initiated or, to the knowledge of the Company, threatened by the Commission
(the base prospectus included in the later such registration statement or
filed with the Commission pursuant to Rule 424(b) under the Act, as
supplemented to reflect the preliminary terms of the offering of the
Shares, is hereinafter called a "Preliminary Prospectus"; the various parts
of each such registration statement, including all exhibits thereto and (i)
the information contained in the form of base prospectus included in the
later such registration statement, as supplemented to reflect the final
terms of the offering of the Shares, filed with the Commission pursuant to
Rule 424(b) under the Act in accordance with Section 5(a) hereof and (ii)
the documents incorporated by reference in such base prospectus at the time
such part of the later such registration statement became effective, each
as amended at the time such part of the later such registration statement
became effective, are hereinafter collectively called the "Registration
Statement"; such base prospectus, as supplemented to reflect the final
terms of the offering of the Shares, in the form first filed pursuant to
Rule 424(b) under the Act, is hereinafter called the "Prospectus"; any
reference herein to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act, as of the date of
such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; and any reference to any
amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement);
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act, and the rules and regulations of
the Commission thereunder, and did 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; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
the Representatives expressly for use therein;
(c) The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, 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
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further documents so filed and incorporated by reference in the Prospectus
or any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder 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;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
the Representatives expressly for use therein;
(d) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
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; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter through the Representatives expressly for use therein;
(e) The Company and its subsidiaries taken as a whole have not sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material 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, otherwise than as set forth
or contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock (except for
capital stock issued upon exercise of stock options or pursuant to employee
benefit plans) or a material increase in the consolidated long-term debt of
the Company or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries considered as a whole,
otherwise than as set forth or contemplated in the Prospectus;
(f) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
full corporate power and authority to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such qualification, or
is subject to no material liability or disability by reason of the failure
to be so qualified in
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any such jurisdiction; and each significant subsidiary (as such term is
defined in Rule 405 under the Act), each such significant subsidiary being
identified on Annex A hereto and being called herein a "Significant
Subsidiary," has been duly incorporated or organized, as the case may be,
and is validly existing in good standing under the laws of its jurisdiction
of organization;
(g) 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 and are fully paid and
non-assessable; the Shares have been duly and validly authorized and upon
payment and delivery in accordance with the provisions of this Agreement,
will be duly and validly issued, fully paid and non-assessable and will
conform in all material respects to the description of the Shares contained
in the Prospectus; and all of the issued shares of capital stock,
membership interests or partnership interests, as the case may be, of each
Significant Subsidiary have been duly and validly authorized and issued,
are fully paid and non-assessable and (except for directors' qualifying
shares and except as otherwise set forth in the Prospectus) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(h) The issue and sale of the Shares and the compliance by the Company
with all of the provisions of this Agreement and the consummation of the
transactions herein and therein contemplated 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 material indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company
or any of its Significant Subsidiaries is a party or by which the Company
or any of its Significant Subsidiaries is bound or to which any of the
property or assets of the Company or any of its Significant Subsidiaries is
subject, nor will such action result in any violation of the provisions of
the Certificate of Incorporation or By-laws of the Company 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 Significant
Subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale of
the Shares or the consummation by the Company of the transactions
contemplated by this Agreement, except the registration under the Act of
the Shares and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the Shares by the
Underwriters;
(i) Neither the Company nor any of its Significant Subsidiaries is in
violation of its Certificate of Incorporation or By-laws (or similar
constituent document) or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of its
properties may be bound, except if such default could not reasonably be
expected to have a material
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adverse effect on the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, considered as a whole;
(j) The statements set forth in the Prospectus under the caption
"Description of Common Stock," insofar as they purport to constitute a
summary of the terms of the Shares, and under the caption "Certain United
States Federal Income Tax Considerations," insofar as they purport to
describe the provisions of the laws and documents referred to therein, are
accurate, complete and fair;
(k) Other than 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 of the Company or any of
its subsidiaries is the subject, which could reasonably be expected, either
individually or in the aggregate, to have a material adverse effect on the
general affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, considered as a
whole; and, to the Company's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others;
(l) The Company is not and, after giving effect to the offering and sale
of the Shares, will not be an "investment company," as such term is defined
in the Investment Company Act of 1940, as amended (the "Investment Company
Act");
(m) Xxxxxx Xxxxxxxx LLP, who has certified certain financial statements
of the Company and its subsidiaries, and PricewaterhouseCoopers LLP, who
has certified certain financial statements of Oryx Energy Company, are each
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder;
(n) This Agreement has been duly authorized, executed and delivered by
the Company;
(o) Neither the Company nor any subsidiary is a "holding company" or a
"public utility," as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended (the "1935 Act");
(p) The Company and its subsidiaries possess all material licenses,
certificates, permits and other authorizations issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their
respective businesses, and neither the Company nor any such subsidiary has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, considered as a whole,
whether or not arising from transactions in the ordinary course of
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business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto);
(q) The Company and its subsidiaries (i) are in compliance with any and
all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received and are in compliance with all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) have
not received notice of any actual or potential liability for the
investigation or remediation of any disposal or release of hazardous or
toxic substances or wastes, pollutants or contaminants, except where such
non-compliance with Environmental Laws, failure to receive required
permits, licenses or other approvals, or liability would not, individually
or in the aggregate, have a material adverse effect on the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, considered as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto);
(r) Except as set forth in the Prospectus and except as set forth in
Annex B attached hereto, neither the Company nor any of its subsidiaries
has been named as a "potentially responsible party" under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended;
(s) In the ordinary course of its business, the Company periodically
reviews the effect of Environmental Laws on the business, operations and
properties of the Company and its subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental Laws, or
any permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties), and on the
basis of such review, the Company has reasonably concluded that such
associated costs and liabilities would not, singly or in the aggregate,
have a material adverse effect on the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries, considered as a whole, whether or not arising
from transactions in the ordinary course of business, except as set forth
in or contemplated in the Prospectus (exclusive of any supplement thereto);
and
(t) The subsidiaries listed on Annex A attached hereto are the only
significant subsidiaries of the Company as defined by Rule 405 under the
Act.
2. Subject to the terms and conditions herein set forth, (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
a purchase price per share of $_________, the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto, and (b) in
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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 same purchase price set forth
in clause (a) of this Section 2, that portion of the Optional Shares as to which
such election shall have been exercised (to be adjusted by the Representatives
so as to eliminate fractional shares) determined by multiplying the total amount
of Optional Shares with respect to which such election shall have been exercised
by a fraction, the numerator of which is the maximum number of Optional Shares
which such Underwriter is entitled to purchase as set forth opposite the name of
such Underwriter in Schedule I hereto and the denominator of which is the
maximum number of Optional Shares which all of the Underwriters are entitled to
purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to Optional Shares, at the same purchase price set
forth in clause (a) of the first paragraph of this Section 2, for the sole
purpose of covering sales of Shares in excess of the number of 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 Agreement, setting forth the 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, earlier than two or later than ten business days after the
date of such notice.
3. Upon the authorization by the Representatives of the release of the Firm
Shares, the several Underwriters propose to offer the Firm Shares for sale upon
the terms and conditions set forth in the Prospectus.
4. (a) Certificates in definitive form for the Shares to be purchased by
each Underwriter hereunder, in such authorized denominations and registered in
such names as the Representatives may request upon at least forty-eight hours'
prior notice to the Company, shall be delivered by or on behalf of the Company
to the Representatives for the account of such Underwriter, against payment by
such Underwriter or on its behalf of the purchase price therefor by wire
transfer of federal (same-day) funds to the account specified by the Company to
the Representatives at least forty-eight hours in advance. The time and date of
such delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m.,
New York City time, on _________, 2000, or at such other time and date as you
and the Company may agree upon in writing, and, with respect to the Optional
Shares, 9:30 a.m., New York City time, on the date specified by the
Representatives in the written notice given by them of the Underwriters'
election to purchase the Optional Shares, or at such other time and date as the
Representatives and the Company may agree upon in writing. Such time and date
for delivery of the Firm Shares is herein called the "First Time of Delivery,"
such time and date for delivery of the Optional Shares, if not the First Time of
Delivery, is herein called the "Second Time of Delivery," and each such time and
date for delivery is herein called a "Time of Delivery".
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(b) The Shares and the documents to be delivered at each Time of Delivery
by or on behalf of the parties hereto pursuant to Section 7 hereof, including
the cross-receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7(l) hereof, will be delivered at the offices
of Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000 (the "Closing Location"). A meeting will be held at the Closing
Location at 3:00 p.m., New York City time, on the New York Business Day next
preceding such Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4(b), "New
York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York City are
generally authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by the Representatives and
to file such Prospectus 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; to make no further
amendment or any supplement to the Registration Statement or Prospectus prior to
the last Time of Delivery which reasonably shall be disapproved of by the
Representatives promptly after reasonable notice thereof; to advise the
Representatives, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes effective or
any supplement to the Prospectus or any amended Prospectus has been filed with
the Commission and to furnish the Representatives with copies thereof; 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 for
so long as the delivery of a prospectus is required in connection with the
offering or sale of the Shares; to advise the Representatives, promptly after it
receives notice thereof, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any Preliminary Prospectus or
prospectus, of the suspension of the qualification of the Shares for offering or
sale in any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any such stop order or of any
such order preventing or suspending the use of any Preliminary Prospectus or
prospectus or suspending any such qualification, promptly to use its best
efforts to obtain the withdrawal of such order;
(b) 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 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
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not be required to qualify as a foreign corporation or to file a general consent
to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York Business Day
next succeeding the date of this Agreement and from time to time, to furnish the
Representatives with copies of the Prospectus as amended and supplemented in New
York City in such quantities as the Representatives may reasonably request, and,
if the delivery of a prospectus is required at any time prior to the expiration
of nine months after the time of issue of the Prospectus in connection with the
offering or sale of the Shares and if at such time 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 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 during such same
period to amend or supplement the Prospectus or to file under the Exchange Act
any document incorporated by reference in the Prospectus in order to comply with
the Act or the Exchange Act, to notify the Representatives and upon their
request to file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such statement
or omission or effect such compliance; and in case any Underwriter is required
to deliver a prospectus in connection with sales of Shares at any time nine
months or more after the time of issue of the Prospectus, upon the request of
the Representatives but at the expense of such Underwriter, to prepare and
deliver to such Underwriter as many copies as it may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule
158);
(e) During the period beginning from the date hereof and continuing to and
including the date 90 days after the date of this Agreement, not to offer, sell,
or otherwise dispose of any shares of the Company's common stock or any
securities that are convertible into or exchangeable or exercisable for any such
shares of common stock or enter into any derivative transaction with similar
effect as a sale of such common stock (other than (i) the issuance of shares of
common stock by the Company under employee incentive plans or upon exercise of
options issued under employee incentive plans, (ii) the sale to the Underwriters
of the convertible subordinated debentures of the Company pursuant to the
contemporaneous offering described in the Prospectus or (iii) the issuance of
common stock upon conversion of such convertible subordinated debentures),
without the prior written consent of the Designated Underwriter. The Designated
Underwriter shall be either Xxxxxx Brothers Inc. or Xxxxxxx, Xxxxx & Co., the
identity of such firm to be determined by the Representatives promptly upon such
consent being sought by the Company;
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(f) To use the net proceeds received by it from the sale of the Shares
pursuant to this Agreement in the manner specified in the Prospectus under the
caption "Use of Proceeds"; and
(g) To use its best efforts to list, subject to notice of issuance, the
Shares on The New York Stock Exchange.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Shares under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, the Blue Sky survey, closing documents (including
any compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Shares; (iii) all expenses in
connection with the qualification of the Shares for offering and sale under
state securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey; (iv) the cost of
preparing the certificates representing the Shares; and (v) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. It is understood, however,
that, except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Shares by them, and any
advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company herein are, at and as of such Time of Delivery, true and correct,
the condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) 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
rules and regulations under the Act and in accordance with Section 5(a) hereof;
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 all requests for
additional information on the part of the Commission shall have been complied
with to the reasonable satisfaction of the Representatives;
(b) Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, shall have
furnished to the Representatives such written opinion, dated such Time of
Delivery, with respect to the incorporation of the Company, the validity of the
Shares, the Registration Statement, the Prospectus and other related matters as
the Representatives may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them to
render such opinion;
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(c) Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Company, shall have
furnished to the Representatives their written opinion, dated such Time of
Delivery, in form and substance satisfactory to the Representatives, to the
effect that:
(i) The Company and Xxxx-XxXxx Oil & Gas Corporation have each been
duly incorporated and are each validly existing and in good standing as
corporations under the laws of the State of Delaware and have full
corporate power and authority to conduct their respective business as
described in the Prospectus as amended or supplemented;
(ii) This Agreement has been duly authorized, executed and delivered by
the Company;
(iii) The Shares being issued at such Time of Delivery have been duly
and validly authorized and, upon payment and delivery in accordance with
this Agreement, will be validly issued, fully paid and non-assessable;
(iv) The statements made in the Prospectus under the caption
"Description of Common Stock," insofar as they purport to constitute
summaries of certain terms of the documents referred to therein, constitute
accurate summaries of the terms of such documents in all material respects;
(v) The statements made in the Prospectus under the caption "Certain
United States Federal Income Tax Considerations," insofar as they purport
to constitute summaries of matters of United States federal tax law and
regulations or legal conclusions with respect thereto, constitute accurate
summaries of the matters described therein in all material respects; and
(vi) The Company is not an "investment company," or a company
"controlled" by an "investment company" within the meaning of and subject
to regulation under the Investment Company Act.
In addition, such counsel shall state that they have not independently
verified the accuracy, completeness or fairness of the statements made or
included in the Registration Statement, the Prospectus or the Exchange Act
documents incorporated therein and that they take no responsibility therefor,
except as and to the extent set forth in paragraphs (iv) and (v) above. In the
course of the preparation by the Company of the Registration Statement and the
Prospectus (excluding the Exchange Act documents incorporated therein), such
counsel shall state that they participated in conferences with certain officers
and employees of the Company, with representatives of Xxxxxx Xxxxxxxx LLP and
with counsel to the Company. Such counsel may state that they did not
participate in the preparation of the Exchange Act documents incorporated
therein or review such documents prior to their filing with the Commission.
Based upon such counsel's examination of the Registration Statement, Prospectus
and Exchange Act documents incorporated therein and such counsel's
investigations made in connection with the preparation of the Registration
Statement, and the Prospectus (excluding the Exchange Act documents incorporated
therein) and such counsel's participation in the conferences referred to
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above, (i) such counsel shall state that they are of the opinion that the
Registration Statement as of its effective date, and the Prospectus, as of its
date, complied as to form in all material respects with the requirements of the
Act and the applicable rules and regulations of the Commission thereunder and
that the Exchange Act documents incorporated therein complied as to form when
filed in all material respects with the requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case such counsel need express no opinion with respect to the financial
statements or other financial data contained or incorporated by reference in the
Registration Statement, the Prospectus or the Exchange Act documents
incorporated therein and (ii) such counsel had no reason to believe that the
Registration Statement, as of its effective date (including the Exchange Act
documents incorporated therein on file with the Commission on such effective
date), contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading or that the Prospectus (including the Exchange
Act documents incorporated therein) as of its date contained, or, as of such
Time of Delivery, contains, any untrue statement of a material fact or omitted
or omits to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that in each case such counsel need express no belief with
respect to the financial statements or other financial data contained or
incorporated by reference in the Registration Statement, the Prospectus or the
Exchange Act documents incorporated therein.
In rendering the foregoing opinion, Xxxxxxx Xxxxxxx & Xxxxxxxx may state
that such opinion is limited to the federal laws of the United States, the laws
of the State of New York and the General Corporation Law of the State of
Delaware, and that they are expressing no opinion as to the effect of the laws
of any other jurisdiction. In addition, such counsel may state that they have
relied as to certain matters on information obtained from public officials,
officers of the Company and other sources believed by them to be responsible;
(d) Xxxxxxx X. Xxxxxxx, Vice President, General Counsel and Secretary of
the Company, shall have furnished to the Representatives his written opinion,
dated such Time of Delivery, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company has an authorized capitalization as set forth in the
Prospectus as amended or supplemented, and all of the issued shares of
capital stock of the Company (including the Shares being issued at such
Time of Delivery) have been duly and validly authorized and issued and are
fully paid and non-assessable;
(ii) The Company has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification or is subject to no material
liability or disability by reason of the failure to be so qualified in any
such jurisdiction;
(iii) Each Significant Subsidiary of the Company (other than Xxxx-XxXxx
Oil & Gas Corporation) has been duly incorporated or organized, as the case
may be, and is
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validly existing in good standing under the laws of its jurisdiction of
organization; and all of the issued shares of capital stock, membership
interests or partnership interests, as the case may be, of each Significant
Subsidiary have been duly and validly authorized and issued, are fully paid
and non-assessable, and (except for directors' qualifying shares and except
as otherwise set forth in the Prospectus) are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances, equities or
claims;
(iv) To such counsel's knowledge and other than 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
of the Company or any of its subsidiaries is the subject which could
reasonably be expected, either individually or in the aggregate, to have a
material adverse effect on the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, considered as a whole; and, to such counsel's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(v) The issue and sale of the Shares being issued and delivered at such
Time of Delivery and the compliance by the Company with all of the
provisions of this Agreement and the consummation of the transactions
herein and therein contemplated 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 material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such counsel to which
the Company or any of its Significant Subsidiaries is a party or by which
the Company or any of its Significant Subsidiaries is bound or to which any
of the property or assets of the Company or any of its Significant
Subsidiaries is subject, nor will such actions result in any violation of
the provisions of the Certificate of Incorporation or By-laws of the
Company 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 Significant Subsidiaries or any of their properties; and
(vi) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Shares being issued and delivered at
such Time of Delivery or the consummation by the Company of the
transactions contemplated by this Agreement, except such as have been
obtained under the Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of the
Shares by the Underwriters.
(e) On the date of the Prospectus at a time prior to the execution of this
Agreement, at 9:30 a.m., New York City time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to the
date of this Agreement and also at such Time of Delivery, Xxxxxx Xxxxxxxx LLP
and PricewaterhouseCoopers LLP shall have furnished to the Representatives
letters, dated the respective dates of delivery thereof, in form and substance
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satisfactory to the Representatives, to the effect set forth in Annex C and
Annex D hereto, respectively;
(f) (i) Neither the Company nor any of its subsidiaries shall have
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, otherwise than as set forth or contemplated in the Prospectus, and
(ii) since the respective dates as of which information is given in the
Prospectus there shall not have been any change in the capital stock or
long-term debt of the Company and its subsidiaries considered as a whole, or any
change, or any development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries considered as a whole,
otherwise than as set forth or contemplated in the Prospectus, the effect of
which, in any such case described in clause (i) or (ii), 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 Shares on
the terms and in the manner contemplated in the Prospectus;
(g) On or after the date hereof (i) no downgrading shall have occurred in
the rating accorded the Company's debt securities by any "nationally recognized
statistical rating organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt securities;
(h) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on the New York Stock
Exchange; (iii) a general moratorium on commercial banking activities declared
by either Federal or New York State authorities; or (iv) the outbreak or
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any such event
specified in this clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares on the terms and in the manner contemplated in the Prospectus;
(i) The Company shall have complied with the provisions of Section 5(c)
hereof with respect to the furnishing of prospectuses on the New York Business
Day next succeeding the date of this Agreement;
(j) The Shares shall be duly listed, subject to notice of issuance, on The
New York Stock Exchange;
(k) The directors and executive officers of the Company listed in Schedule
II shall have entered into a written agreement in the form of Annex E hereto
(each such agreement, a "Lock-up Agreement"), and executed originals of each
Lock-up Agreement shall have been delivered to the Representatives; and
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(l) The Company shall have furnished or caused to be furnished to the
Representatives at such Time of Delivery certificates of officers of the Company
satisfactory to the Representatives as to the accuracy of the representations
and warranties of the Company herein at and as of such Time of Delivery, as to
the performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth in
subsections (a) and (f) of this Section and as to such other matters as the
Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any other
prospectus relating to the Shares or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim 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 or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement, the Prospectus, any such amendment or
supplement, or any other prospectus relating to the Shares in reliance upon and
in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus, any
amendment or supplement thereto, or any other prospectus relating to the Shares,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, the Registration
Statement, the Prospectus, any such amendment or supplement, or any other
prospectus relating to the Shares in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect
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thereof is to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim 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.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Shares. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions 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 shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
bear to the total underwriting discount received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on the one hand or the Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
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17
such statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company (including any
person who, with his or her consent, is named in the Registration Statement as
about to become a director of the Company) and to each person, if any, who
controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder at a Time of Delivery, the
Representatives may in their discretion arrange for themselves or another party
or other parties to purchase such Shares on the terms contained herein at such
Time of Delivery. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such Shares,
then the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to the
Representatives to purchase such Shares on such terms. In the event that, within
the respective prescribed periods, the Representatives notify the Company that
they have so arranged for the purchase of such Shares, or the Company notifies
the Representatives that it has so arranged for the purchase of such Shares, the
Representatives or the Company shall have the right to postpone such Time of
Delivery for a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company agrees to
file promptly any amendments or supplements to the Registration Statement or the
Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this
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Section with like effect as if such person had originally been a party to this
Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by the Representatives and
the Company as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased does not exceed one-eleventh of the aggregate
number of all the Shares, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the number of Shares which such
Underwriter agreed to purchase hereunder and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the number
of Shares which such Underwriter agreed to purchase hereunder at such Time of
Delivery) of the Shares of such defaulting Underwriter or Underwriters for which
such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by the Representatives and
the Company as provided in subsection (a) above, the aggregate amount of Shares
which remains unpurchased exceeds one-eleventh of the aggregate amount of all
the Shares to be purchased at such Time of Delivery, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Shares of a defaulting Underwriter or Underwriters,
then this Agreement (or, with respect to the Second Time of Delivery, the
obligation of the Underwriters to purchase and of the Company to sell the
Optional Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof, the
Company shall not then be under any liability to any Underwriter except as
provided in Sections 6 and 8 hereof; but, if for any other reason, any Shares
are not delivered by or on behalf of the Company as provided herein, the Company
will reimburse the Underwriters for all out-of-pocket expenses approved in
writing by the Representatives, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of the Shares, but the Company shall then be under no further
liability to any Underwriter except as provided in Sections 6 and 0 xxxxxx.
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00
00. In all dealings hereunder, the Representatives shall act on behalf of
the Underwriters, and the parties hereto shall be entitled to act and rely upon
any statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if any,
as may be designated for such purpose herein.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail or
facsimile transmission to the Representatives c/x Xxxxxx Brothers, Inc., 3 World
Financial Center, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; and if to the
Company shall be delivered or sent by mail or facsimile transmission to the
address of the Company set forth in the Registration Statement, Attention:
General Counsel; provided, however, that any notice to an Underwriter pursuant
to Section 8(c) hereof shall be delivered or sent by mail or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Company by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent provided in Sections 8 and
10 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Shares from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such respective counterparts shall together constitute one and the same
instrument.
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If the foregoing is in accordance with your understanding, please sign and
return to us one for the Company, one for each of the Underwriters, and one for
each counsel, counterparts hereof, and upon the acceptance hereof by each of the
Representatives, this letter and such acceptance hereof shall constitute a
binding agreement between each of the Underwriters and the Company.
Very truly yours,
XXXX-XxXXX CORPORATION
By:
--------------------------------------
Name:
Title:
Accepted as of the date hereof:
XXXXXX BROTHERS INC.
By:
--------------------------------
Name:
Title:
XXXXXXX, XXXXX & CO.
By:
--------------------------------
(Xxxxxxx, Sachs & Co.)
As Representatives of the several Underwriters
named in Schedule I hereto
Signature Page to Underwriting Agreement
(Common Stock)
21
SCHEDULE I
UNDERWRITERS
MAXIMUM
NUMBER OF
NUMBER OPTIONAL
OF FIRM SHARES
SHARES WHICH
TO BE MAY BE
PURCHASED PURCHASED
--------- ---------
UNDERWRITER
Xxxxxx Brothers Inc. ..........................................................
Xxxxxxx, Sachs & Co............................................................
ABN AMRO Incorporated..........................................................
Credit Suisse First Boston Corporation.........................................
Deutsche Bank Securities Inc...................................................
X.X. Xxxxxx Securities Inc.....................................................
Banc of America Securities LLC.................................................
Xxxxxxx Xxxxx Barney Inc.......................................................
---------- ----------
Total........................................................ 9,000,000 1,350,000
========== ==========
SCHEDULE I - PAGE 1
22
SCHEDULE II
OFFICERS AND DIRECTORS SIGNING LOCK-UP AGREEMENTS
Xxxx X. Xxxxxxx
Xxx X. XxXxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxx
Xxxxx X. Xxxxxxx-Xxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx
Xxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Xxx X. Xxxxx-Xxxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxx
W. Xxxxx Xxxxxxxx
Xxxxxx X. Xxxxxxxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxx X. Xxxx
Xxxx X. Xxxxxxx
SCHEDULE II - PAGE 1
23
ANNEX A
SIGNIFICANT SUBSIDIARIES
Xxxx-XxXxx Oil & Gas Corporation
Xxxx-XxXxx (G.B.) Limited
Xxxx-XxXxx Chemical LLC
Xxxx-XxXxx Oil & Gas Onshore XX
Xxxx-XxXxx L.P. Corporation
ANNEX A - PAGE 1
24
ANNEX B
ENVIRONMENTAL DISCLOSURES
The Company and/or its subsidiaries has been named a "potentially
responsible party" in connection with sites located in the following
jurisdictions:
Xxxxxxxxx, Xxxxxxxxx
Xxxx Xxxxxxx, Xxxxxxxx (Residential Areas)
West Chicago, Illinois (Xxxx-Xxxxxxx Park)
Chicago, Illinois (Xxxxxxx Light II)
Soda Springs, Idaho
California (Operating Industries, Inc.)
Double Eagle, Oklahoma
Lakeview, Oregon
Picketville, Florida
Xxxxx Drum, Florida
Brunswick, Georgia
Toledo, Ohio
Xxxxxxxxxx Parish, Louisiana (PAB Oil Site)
Manville, New Jersey
ANNEX B - PAGE 1
25
ANNEX C
MATTERS TO BE ADDRESSED IN COMFORT LETTERS OF XXXXXX XXXXXXXX LLP
Xxxxxx Xxxxxxxx LLP shall furnish letters to the Underwriters, dated the
respective date of delivery thereof, in form and substance satisfactory to the
Underwriters, confirming that they are independent certified public accountants
with respect to the Company and its subsidiaries within the meaning of the Act
and the Exchange Act and the respective applicable rules and regulations adopted
by the Commission thereunder and that they have performed a review of the
unaudited interim financial information of the Company for the three-month and
nine-month periods ended September 30, 1999, and as at September 30, 1999, in
accordance with the Statement on Auditing Standards No. 71, and stating in
effect that:
(i) in their opinion the audited financial statements and financial
statement schedules included or incorporated in the Registration Statement and
the Prospectus and reported on by them comply in form in all material respects
with the applicable accounting requirements of the Act and the Exchange Act and
the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements
made available by the Company and its subsidiaries; their limited review, in
accordance with standards established under Statement on Auditing Standards No.
71, of the unaudited interim financial information for the three-month and
nine-month periods ended September 30, 1999, and as at September 30, 1999;
carrying out certain specified procedures (but not an examination in accordance
with generally accepted auditing standards) which would not necessarily reveal
matters of significance with respect to the comments set forth in such letter; a
reading of the minutes of the meetings of the directors and audit committee of
the Company and its subsidiaries; and inquiries of certain officials of the
Company who have responsibility for financial and accounting matters of the
Company and its subsidiaries as to transactions and events subsequent to
December 31, 1998, nothing came to their attention which caused them to believe
that:
(1) any unaudited financial statements included or incorporated by
reference in the Registration Statement and the Prospectus do not comply as
to form in all material respects with applicable accounting requirements of
the Exchange Act as it applies to Form 10-Q and the related rules and
regulations adopted by the Commission; and said unaudited financial
statements are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the
audited financial statements of the Company included or incorporated by
reference in the Registration Statement and the Prospectus;
(2) with respect to the period subsequent to September 30, 1999,
there were any changes, at a specified date not more than five days prior
to the date of the letter, in the long-term debt of the Company and its
subsidiaries or, capital stock of the Company,
ANNEX C - PAGE 1
26
or decreases in the stockholders' equity or net current assets of the
Company, as compared with the amounts shown on the September 30, 1999
unaudited consolidated condensed balance sheet included or incorporated in
the Registration Statement and the Xxxx-XxXxx Prospectus, or for the period
from October 1, 1999 to such specified date there were any decreases, as
compared with the corresponding period in the preceding year in
consolidated sales, net income or net income per share of the Company and
its subsidiaries, except in all instances for changes or decreases 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 necessary by the Underwriters;
(3) the information included or incorporated by reference in the
Registration Statement and the Prospectus in response to Regulation S-K,
Item 301 (Selected Financial Data), Item 302 (Supplementary Financial
Information) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in
conformity with the applicable disclosure requirements of Regulation S-K.
(iii) 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 and its
subsidiaries) set forth in the Registration Statement and the Prospectus and in
Exhibit 12 to the Registration Statement, including the information set forth
under the captions "Selected Financial and Operating Data of Xxxx-XxXxx" in the
Prospectus and "Ratio of Earnings to Fixed Charges and Ratio of Earnings to
Combined Fixed Charges and Preferred Stock Dividend Requirements" in the
Prospectus, the information included or incorporated by reference in Items 1, 2,
6 and 7 of the Company's Annual Report on Form 10-K, incorporated by reference
in the Registration Statement and the Prospectus, agrees with the accounting
records of the Company and its subsidiaries, excluding any questions of legal
interpretation.
References to the Prospectus in this Annex C include any amendment or
supplement thereto at the date of the letter.
ANNEX C - PAGE 2
27
ANNEX D
MATTERS TO BE ADDRESSED IN COMFORT LETTERS OF
PRICEWATERHOUSECOOPERS LLP
PricewaterhouseCoopers LLP shall furnish letters to the Underwriters, dated
the respective date of delivery thereof, in form and substance satisfactory to
the Underwriters, confirming that they are independent certified public
accountants with respect to Oryx Energy Company within the meaning of the Act
and the Exchange Act and the respective applicable rules and regulations adopted
by the Commission thereunder and stating in effect that, in their opinion, the
audited financial statements of Oryx Energy Company referred to in their report
dated February 26, 1999, which is incorporated by reference in the Registration
Statement and the Prospectus, comply in form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and the
related rules and regulations adopted by the Commission.
ANNEX D - PAGE 1
28
ANNEX E
LOCK-UP AGREEMENT
[Date]
Xxxxxx Brothers Inc.
Xxxxxxx, Xxxxx & Co.
c/x Xxxxxx Brothers Inc.
3 World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned have been informed that Xxxx-XxXxx Corporation (the
"Company") proposes to issue shares of its common stock (the
"Shares"). The undersigned have been informed that the Company has prepared a
preliminary prospectus regarding the Shares and will enter into an underwriting
agreement with respect to the Shares (the "Underwriting Agreement") with Xxxxxx
Brothers Inc. and Xxxxxxx, Sachs & Co. (the "Underwriters"), as representatives
on behalf of the underwriters named in such Underwriting Agreement.
To facilitate the sale of the Shares, to be purchased thereunder and in
consideration of the Underwriters entering into the Underwriting Agreement, the
undersigned hereby irrevocably confirms, covenants and agrees for the benefit of
the Company and the Underwriters that, except as set forth herein, the
undersigned will not, directly, or indirectly, offer, sell, or otherwise dispose
of any shares of the Company's common stock registered in the name of or
beneficially owned by the undersigned on the date hereof within the meaning of
the Securities Exchange Act of 1934 or any securities convertible into or
exchangeable or exercisable for any such shares of common stock (collectively,
the "Exchangeable Securities"), or enter into any derivative transaction with
similar effect as a sale of such common stock, for a period of 90 days after the
date of the Underwriting Agreement, without the prior written consent of the
Underwriter designated pursuant to the Underwriting Agreement.
Notwithstanding the foregoing, the undersigned retains the right to offer,
sell, or otherwise dispose of any shares of the Company's common stock or
Exchangeable Securities that are registered in the name of or beneficially owned
by the undersigned within the meaning of the Securities Exchange Act of 1934, if
directed by a trust beneficiary, customer or other third party where such third
party has the legal or contractual right to require such offer, sale, or other
disposal of such common stock or Exchangeable Securities or to the extent the
undersigned is required to effect any disposition pursuant to any fiduciary,
legal or contractual obligation.
The undersigned further represents to you that as of the date hereof the
undersigned is not a party to (nor are any of the shares of any class of the
Company's common stock registered in
ANNEX E - PAGE 1
29
the name of or beneficially owned by the undersigned or any Exchangeable
Securities owned by the undersigned subject to) any option, warrant or other
right to acquire such common stock or Exchangeable Securities by any other
person or entity.
The undersigned acknowledges and agrees that this agreement shall be
binding upon and inure to the benefit of the successors and assigns of the
undersigned, the Company and the Underwriters.
Very truly yours,
ANNEX E - PAGE 2
