1
EXHIBIT 1.2
XXXX-XXXXX CORPORATION
$
___% CONVERTIBLE SUBORDINATED DEBENTURES DUE 2010
--------------------------
UNDERWRITING AGREEMENT
February ___, 2000
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:
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 $ principal amount of the ___% Convertible Subordinated Debentures
due 2010, convertible into the Common Stock ("Stock") of the Company (the "Firm
Securities") and, at the election of the Underwriters, up to an aggregate of
$ additional aggregate principal amount thereof (the "Optional
Securities") (the Firm Securities and the Optional Securities which the
Underwriters elect to purchase pursuant to Section 2 hereof are herein
collectively called the "Securities").
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 Firm Securities and Optional Securities and
shares of the Stock issuable upon conversion thereof, 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 you, 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
2
suspending the effectiveness of such registration statements or any
post-effective amendment thereto has been issued and no proceeding
for that purpose has been 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 Securities, is hereinafter
called a "Preliminary Prospectus"; the various parts of each such
registration statement, including all exhibits thereto but excluding
Form T-1 and including (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
Securities, 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 Securities, 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 Trust Indenture Act of
1939, as amended (the "Trust Indenture 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 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
2
3
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
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 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 Trust Indenture 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 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
3
4
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; 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 of Stock initially issuable upon
conversion of the Securities have been duly and validly authorized and
reserved for issuance and, when issued and delivered in accordance
with the provisions of the Securities and the Indenture referred to
below, will be duly and validly issued, fully paid and non-assessable
and will conform in all material respects to the description of the
Stock 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 Firm Securities and Optional Securities have been duly
authorized and, when issued and delivered pursuant to this Agreement
and duly executed and authenticated pursuant to the Indenture, will
constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture dated as of August
1, 1982, as supplemented and amended by the First Supplemental
Indenture dated May 7, 1996, the Second Supplemental Indenture dated
August 2, 1999, the Third Supplemental Indenture dated November 1,
1999, and the Fourth Supplemental Indenture dated January 18, 2000,
and as proposed to be supplemented and amended by a Fifth Supplemental
Indenture pursuant to which the Firm Securities and Optional
Securities are to be issued, each between the Company and Citibank,
N.A., as Trustee (the "Trustee") (as so supplemented and amended, and
as proposed to be supplemented and amended, the "Indenture"), under
which they are to be issued, each of which Indenture and supplements
thereto (except for the Fourth Supplemental Indenture and the Fifth
Supplemental Indenture) has been filed as an exhibit to the
Registration Statement; the Indenture has been duly authorized and
duly qualified under the Trust Indenture Act and constitutes a valid
and legally binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject, as to enforcement, to
the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing; and the Indenture
conforms, and the Securities will conform, to the descriptions thereof
in the Prospectus;
4
5
(i) The issue and sale of the Securities and the compliance by
the Company with all of the provisions of the Securities, the
Indenture and 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
Securities or the consummation by the Company of the transactions
contemplated by this Agreement or the Indenture, except the
registration under the Act of the Securities and the shares of Stock
issuable upon conversion thereof, the qualification of the Indenture
under the Trust Indenture 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 Securities by the Underwriters;
(j) 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
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;
(k) The statements set forth in the Prospectus under the captions
"Description of Debt Securities," "Description of the Debentures," and
"Description of Common Stock," insofar as they purport to constitute a
summary of the terms of the Securities and the Stock, 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;
(l) 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;
5
6
(m) The Company is not and, after giving effect to the offering
and sale of the Securities, will not be an "investment company," as
such term is defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act");
(n) 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;
(o) This Agreement has been duly authorized, executed and
delivered by the Company;
(p) 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");
(q) 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 business, except as set forth
in or contemplated in the Prospectus (exclusive of any supplement
thereto);
(r) 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);
6
7
(s) 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;
(t) 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
(u) 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 of ______% of the principal amount thereof, plus accrued
interest, if any, from _______________, 2000 to the First Time of Delivery (as
defined in Section 4(a) hereof), the principal amount of Securities set forth
opposite the name of such Underwriter in Schedule I hereto, and (b) in the event
and to the extent that the Underwriters shall exercise the election to purchase
Optional Securities 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 aggregate principal amount of
the Optional Securities as to which such election shall have been exercised (to
be adjusted by you so as to eliminate fractions of $1,000 principal amount),
determined by multiplying such aggregate principal amount of Optional Securities
by a fraction, the numerator of which is the maximum aggregate principal amount
of Optional Securities 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 aggregate principal amount of Optional
Securities 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 $ aggregate principal amount of Optional
Securities, at the same purchase price set forth in clause (a) of the first
paragraph of this Section 2, plus accrued interest, if any, from ________, 2000
to the Second Time of Delivery (as defined in Section 4(a) hereof), for the sole
purpose of covering sales of Securities in excess of the aggregate principal
amount of Firm
7
8
Securities. Any such election to purchase Optional Securities may be exercised
by written notice from you to the Company, given within a period of 30 calendar
days after the date of this Agreement, setting forth the aggregate principal
amount of Optional Securities to be purchased and the date on which such
Optional Securities are to be delivered, as determined by you but in no event
earlier than the First Time of Delivery or, unless you 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 you of the release of the Firm
Securities, the several Underwriters propose to offer the Firm Securities for
sale upon the terms and conditions set forth in the Prospectus.
4. (a) The Securities to be purchased by each Underwriter hereunder
will be represented by one or more definitive global Securities in book-entry
form which will be deposited by or on behalf of the Company with the Trustee, as
custodian for The Depository Trust Company ("DTC"). The Company will deliver the
Securities to Xxxxxx Brothers Inc., for the account of each Underwriter, against
payment by or on behalf of such Underwriter of the purchase price therefor by
wire transfer of Federal (same-day) funds to the account specified by the
Company to Xxxxxx Brothers Inc. at least forty-eight hours in advance, by
causing DTC to credit the Securities to the account of Xxxxxx Brothers Inc. at
DTC. The time and date of such delivery and payment shall be, with respect to
the Firm Securities, 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 Securities, 9:30 a.m., New York City time, on the
date specified by you in the written notice given by you of the Underwriters'
election to purchase the Optional Securities, or at such other time and date as
you and the Company may agree upon in writing. Such time and date for delivery
of the Firm Securities is herein called the "First Time of Delivery," such time
and date for delivery of the Optional Securities, 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".
(b) The definitive global Securities referred to in Section 4(a)
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 Securities and any additional documents requested by the Underwriters
pursuant to Section 7(m) 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:
8
9
(a) To prepare the Prospectus in a form approved by you 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 you
promptly after reasonable notice thereof; to advise you, 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 you 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
Securities; to advise you, 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 Securities or the shares of Stock
issuable upon conversion of the Securities 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 you may
reasonably request to qualify the Securities and the shares of Stock issuable
upon conversion of the Securities for offering and sale under the securities
laws of such jurisdictions as you 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 Securities,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(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 Underwriters with copies of the Prospectus as amended and supplemented in
New York City in such quantities as you 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 Securities and the shares of Stock issuable upon conversion of
the Securities 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, the
Exchange Act or the Trust Indenture Act, to
9
10
notify you and upon your 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 you 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 any of the Securities and
the shares of Stock issuable upon conversion of the Securities at any time nine
months or more after the time of issue of the Prospectus, upon your request but
at the expense of such Underwriter, to prepare and deliver to such Underwriter
as many copies as you 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 common stock of the Company pursuant to the contemporaneous offering
described in the Prospectus or (iii) the issuance of common stock upon
conversion of the Securities), without the prior written consent of the
Designated Underwriter. The Designated Underwriter shall be either Xxxxxx
Brothers Inc. or Xxxxxxx, Sachs & Co., the identity of such firm to be
determined by the Underwriters promptly upon such consent being sought by the
Company;
(f) To use the net proceeds received by it from the sale of the
Securities pursuant to this Agreement in the manner specified in the Prospectus
under the caption "Use of Proceeds";
(g) To reserve and keep available at all times, free of preemptive
rights, shares of Stock for the purpose of enabling the Company to satisfy any
obligation to issue shares of its Stock upon conversion of the Securities; and
(h) To use its best efforts to list, subject to notice of issuance, the
Securities and the shares of Stock issuable upon conversion of the Securities 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 Securities and the shares of Stock
issuable upon conversion of the Securities 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
10
11
or producing any Agreement among Underwriters, this Agreement, the Indenture,
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 Securities; (iii) all expenses in connection with the qualification of
the Securities and the shares of Stock issuable upon conversion of the
Securities 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) any fees charged by securities rating services for rating
the Securities; (v) the cost of preparing the Securities; (vi) the fees and
expenses of the Trustee and any agent of the Trustee and the fees and
disbursements of counsel for the Trustee in connection with the Indenture and
the Securities; and (vii) 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 Securities by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Securities
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 your reasonable satisfaction;
(b) Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, shall have
furnished to you such written opinion, dated such Time of Delivery, with respect
to the incorporation of the Company, the validity of the Indenture, the
Securities, the shares of Stock issuable upon conversion of the Securities, the
Registration Statement, the Prospectus and other related matters as you 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;
(c) Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Company, shall have
furnished to you their written opinion, dated such Time of Delivery, in form and
substance satisfactory to you, 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;
11
12
(ii) The shares of Stock initially issuable upon conversion
of the Securities have been duly authorized and reserved for issuance
and, when issued and delivered in accordance with the provisions of
the Securities and the Indenture, will be validly issued, fully paid
and non-assessable;
(iii) This Agreement has been duly authorized, executed and
delivered by the Company;
(iv) The Securities being issued at such Time of Delivery have been
duly authorized, executed and delivered and, assuming due
authentication thereof by the Trustee, and upon payment and delivery
and in accordance with this Agreement, will constitute valid and
legally binding obligations of the Company enforceable against the
Company in accordance with their terms, subject, as to enforcement, to
the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing, and will be entitled to the
benefits of the Indenture;
(v) The Indenture has been duly authorized, executed and delivered
by the Company and duly qualified under the Trust Indenture Act and,
assuming due authorization, execution and delivery thereof by the
Trustee, constitutes a valid and legally binding obligation of the
Company, enforceable against the Company in accordance with its terms,
subject, as to enforcement, to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing;
(vi) The statements made in the Prospectus under the captions
"Description of the Debentures," "Description of Debt Securities," and
"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;
(vii) 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
(viii)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
12
13
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 (vi) and (vii) 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 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, the Trust Indenture 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 you his written opinion, dated
such Time of Delivery, in form and substance satisfactory to you, to the effect
that:
13
14
(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 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 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 Securities being issued and
delivered at such Time of Delivery and the compliance by the Company
with all of the provisions of such Securities, the Indenture and 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
14
15
the Securities being issued and delivered at such Time of Delivery or
the consummation by the Company of the transactions contemplated by
this Agreement or the Indenture, except such as have been obtained
under the Act and the Trust Indenture 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 Securities 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 you letters, dated the
respective dates of delivery thereof, in form and substance satisfactory to you,
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 your judgment so
material and adverse as to make it impracticable or inadvisable to proceed with
the public offering or the delivery of the Securities 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 your judgment makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the Prospectus;
15
16
(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 of Stock issuable upon conversion of the Securities
shall have been duly listed, subject to notice of issuance, on The New York
Stock Exchange;
(k) The Securities shall have been duly listed, subject to notice of
issuance, on The New York Stock Exchange;
(l) 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 you; and
(m) The Company shall have furnished or caused to be furnished to you
at such Time of Delivery certificates of officers of the Company satisfactory to
you 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 you 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 Securities 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 Securities in reliance upon
and in conformity with written information furnished to the Company by any
Underwriter 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 Securities, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to
16
17
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 Securities in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter 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 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 Securities. 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
17
18
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 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 Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within 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 Securities which it has agreed to purchase hereunder at a Time of Delivery,
you may in your discretion arrange for you or another party or other parties to
purchase such Securities on the terms contained herein at such Time of Delivery.
If within thirty-six hours after such default by any Underwriter you do not
arrange for the purchase of such Securities, 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 you to purchase such Securities on such terms. In
the event that, within the respective prescribed periods, you notify the Company
that you have so arranged for the
18
19
purchase of such Securities, or the Company notifies you that it has so arranged
for the purchase of such Securities, you 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 your
opinion may thereby be made necessary. The term "Underwriter" as used in this
Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement with
respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate principal amount of such
Securities which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all the Securities, then the Company shall have
the right to require each non-defaulting Underwriter to purchase the principal
amount of Securities 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 principal amount of Securities which such Underwriter agreed
to purchase hereunder at such Time of Delivery) of the Securities 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
Securities of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate principal amount of Securities
which remains unpurchased exceeds one-eleventh of the aggregate principal amount
of all the Securities 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 Securities 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 Securities) 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 Securities.
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
Securities are not delivered by or on behalf of the
19
20
Company as provided herein, the Company will reimburse the Underwriters for all
out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Securities, but the
Company shall then be under no further liability to any Underwriter except as
provided in Sections 6 and 8 hereof.
12. 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 you 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 you 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 Securities 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.
20
21
If the foregoing is in accordance with your understanding, please sign
and return to us one for the Company, one for each of you, and one for each
counsel counterparts hereof, and upon the acceptance hereof by each of you, 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.)
Signature Page to Underwriting Agreement
(Convertible Subordinated Debentures)
22
SCHEDULE I
UNDERWRITERS
AGGREGATE
PRINCIPAL
AMOUNT OF
OPTIONAL
PRINCIPAL SECURITIES
AMOUNT OF TO BE
SECURITIES PURCHASED IF
TO BE MAXIMUM
UNDERWRITER PURCHASED OPTION EXERCISED
----------- ------------ ----------------
Xxxxxx Brothers Inc. .................................................... $ $
Xxxxxxx, Sachs & Co...................................................... $ $
Total.................................................. ------------ -----------
$ $
============ ===========
SCHEDULE I - PAGE 1
23
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
24
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
25
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
26
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, or decreases in
the stockholders' equity or net current assets of the Company, as
ANNEX C - PAGE 1
27
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
28
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
29
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 Convertible Subordinated Debentures due 2010 (the
"Debentures"). The undersigned have been informed that the Company has prepared
a preliminary prospectus regarding the Debentures and will enter into an
underwriting agreement (the "Underwriting Agreement") with Xxxxxx Brothers Inc.
and Xxxxxxx, Sachs & Co. (the "Underwriters") with respect to the Debentures.
To facilitate the sale of the Debentures, 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.
ANNEX E - PAGE 1
30
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 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
