EXHIBIT 1.1
Continental Airlines, Inc.
4.50% Convertible Notes due ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
January 16, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
As Representative of the several Underwriters,
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Continental Airlines, Inc., a Delaware corporation (the
"Company"), confirms its agreement to sell to the several underwriters named in
Schedule II hereto (the "Underwriters"), for whom you (the "Representative") are
acting as representative, the principal amount of its securities identified in
Schedule II hereto (the "Underwritten Securities"), to be issued under an
indenture dated as of July 15, 1997, as supplemented by the supplemental
indenture dated as of the Closing Date referred to in Section 2(b) hereof
(collectively, the "Indenture"), between the Company and Bank One, N.A., as
trustee (the "Trustee"). The Company also confirms its agreement to grant to the
Underwriters an option to purchase an additional principal amount of securities
identified in Schedule II hereof to cover over-allotments (the "Option
Securities"; and the Option Securities, together with the Underwritten
Securities, being hereinafter called the "Securities").
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-71906) covering the registration of the Securities under the Act, including
the related Preliminary Prospectus or prospectuses. Promptly after execution and
delivery of this Agreement, the Company will prepare and file a prospectus in
accordance with the provisions of Rule 430A and paragraph (b) of Rule 424 ("Rule
424(b)") For purposes of this Agreement, all references to the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement, any Preliminary Prospectus or the Prospectus (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any Preliminary Prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Exchange Act which is incorporated by reference in the
Registration Statement, such Preliminary Prospectus or the Prospectus, as the
case may be. Certain terms used herein are defined in Section 18 hereof.
1. Representations and Warranties. The Company, as of the date
hereof, as of the Closing Date referred to in Section 2(c) hereof, and as of
each Date of Delivery (if any) referred to in Section 2(b) hereof, represents
and warrants to, and agrees with, the Representative as set forth below in this
Section 1.
(a) The Company meets the requirements for use of Form S-3
under the Act. Each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the Act and no stop
order suspending the effectiveness of the Registration Statement or any
Rule 462(b) Registration Statement has been issued under the Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Date (and, if any Option Securities
are purchased, at the Date of Delivery), the Registration Statement did
or will, and when the Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Prospectus
(and any supplement thereto) will, comply in all material respects with
the applicable requirements of the Act, the Exchange Act and the Trust
Indenture Act and the respective rules thereunder; on the Effective
Date and at the Execution Time, the Registration Statement did not or
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; on the Effective
Date and on the Closing Date the Indenture did or will comply in all
material respects with the applicable requirements of the Trust
Indenture Act and the rules thereunder; and, on the Effective Date, the
Prospectus, if not filed pursuant to Rule 424(b), will not, and on the
date of any filing pursuant to Rule 424(b) and on the Closing Date, the
Prospectus (together with any supplement thereto) will not, include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
(i) that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through the Representative specifically for inclusion in the
Registration Statement or the Prospectus (or any supplement thereto).
2
Each Preliminary Prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the Act,
complied when so filed in all material respects with the Act and each
Preliminary Prospectus and the Prospectus delivered to the
Representative for use in connection with this offering was identical
to the electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(b) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, at the time
they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the Exchange
Act, and, when read together with the other information in the
Prospectus, at the time the Registration Statement became effective, at
the time the Prospectus was issued and at the Closing Date (and if any
Option Securities are purchased, at Date of Delivery), did not 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.
(c) Ernst & Young LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries and
delivered their report with respect to the audited consolidated
financial statements and schedules included in the Prospectus, are
independent public accountants with respect to the Company within the
meaning of the Act and the applicable published rules and regulations
thereunder.
(d) The financial statements included in the Registration
Statement and the Prospectus, together with the related schedules and
notes, present fairly in all material respects the financial position
of the Company and its consolidated subsidiaries at the dates indicated
and the statement of operations, stockholders' equity and cash flows of
the Company and its consolidated subsidiaries for the periods
specified; said financial statements comply as to form with the
applicable accounting requirements of the Act and have been prepared in
conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included in the Registration Statement
present fairly in accordance with GAAP the information required to be
stated therein. The selected financial data and the summary financial
information included in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of
the audited financial statements included in the Registration
Statement.
(e) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse change
in the condition, financial or otherwise, or in the earnings, business,
properties or results of operations of the Company and its subsidiaries
taken as a whole, whether or not arising in the ordinary course of
business (a "Material Adverse Effect"), (B) there have been no
transactions entered into by the Company or any of its subsidiaries,
other than those in the ordinary course of business, which are material
with
3
respect to the Company and its subsidiaries taken as a whole, and (C)
except for regular dividends on the Common Stock in amounts per share
that are consistent with past practice, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(f) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of Delaware and has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement; and the Company is duly qualified as a foreign corporation
to transact business and is in good standing in each other jurisdiction
in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect.
(g) Each "significant subsidiary" of the Company (as such term
is defined in Rule 1-02 of Regulation S-X) (each a "Subsidiary" and,
collectively, the "Subsidiaries") has been duly organized and is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and is duly qualified as a
foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement, all of the issued
and outstanding capital stock of each such Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and is
owned by the Company, directly or through subsidiaries, free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock of any
Subsidiary was issued in violation of the preemptive or similar rights
of any security holder of such Subsidiary. The only subsidiaries of the
Company are (a) the subsidiaries listed on Schedule III hereto and (b)
certain other subsidiaries which, considered in the aggregate as a
single Subsidiary, do not constitute a "significant subsidiary" as
defined in Rule 1-02 of Regulation S-X.
(h) The shares of issued and outstanding capital stock of the
Company have been duly authorized and validly issued and are fully paid
and non-assessable; none of the outstanding shares of capital stock of
the Company was issued in violation of the preemptive or other similar
rights of any security holder of the Company.
(i) This Agreement has been duly authorized, executed and
delivered by the Company.
(j) The Indenture has been duly authorized, executed and
delivered, has been duly qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding
4
instrument enforceable against the Company in accordance with its terms
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, regardless of
whether considered in a proceeding in equity or at law); and the
Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters pursuant to this
Agreement, will constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture.
(k) The Common Stock underlying the Securities (the
"Underlying Securities") has been duly authorized and reserved for
issuance by the Company upon conversion of the Securities. The
Underlying Securities, when issued upon such conversion, shall be
validly issued, fully paid and non-assessable and will not be subject
to preemptive or other similar rights of any security holder of the
Company.
(l) Neither the issue and sale of the Securities nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof will conflict with or result in a
breach or violation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its subsidiaries
pursuant to (i) the charter or bylaws of the Company or any of its
subsidiaries, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which the
Company or any of its subsidiaries is a party or bound or to which its
or their property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or any
of its subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other governmental authority
having jurisdiction over the Company, any of its subsidiaries or any of
either of their properties, except, with respect to clause (ii) or
(iii) above, for such conflict, breach, violation or imposition that
could not reasonably be expected to have a Material Adverse Effect.
(m) Except as set forth in the Prospectus, neither the Company
nor any Subsidiary is in breach, violation or default of (i) any
provision of its charter or bylaws, (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property is
subject, or (iii) any statute, law, rule, regulation, judgment, order
or decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other governmental authority having
jurisdiction over the Company or any Subsidiary or any of either of
their properties, as applicable, except, with respect to clause (ii) or
(iii) above, for such breach, violation or default that could not
reasonably be expected to have a Material Adverse Effect.
(n) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent, and
the Company is not aware of any
5
existing or imminent labor disturbance by the employees of the Company
or any Subsidiary that, in either case, may reasonably be expected to
result in a Material Adverse Effect.
(o) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its Subsidiaries or its or their property is pending
or, to the best knowledge of the Company, threatened that could
reasonably be expected to have (i) a material adverse effect on the
performance of this Agreement or the consummation of any of the
transactions contemplated hereby or (ii) a Material Adverse Effect,
except as set forth in or contemplated in the Prospectus (exclusive of
any supplement thereto).
(p) No consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in connection
with the transactions contemplated herein except such as have been
obtained under the Act and the Trust Indenture Act and such as may be
required under the Act or the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated herein and in the Prospectus.
(q) The Company and its subsidiaries possess such permits,
licenses, approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state,
local or foreign regulatory agencies or bodies necessary to conduct the
business now operated by them; the Company and its subsidiaries are in
compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or in
the aggregate, have a Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, except when the
invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(r) The Company and its subsidiaries have good and marketable
title to all material real property owned by the Company and its
subsidiaries and good title to all other material properties owned by
them, in each case, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of any kind
except such as (a) are described in the Prospectus or (b) do not,
singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be made
of such property by the Company or any of its subsidiaries; and all of
the leases and subleases of the Company and its subsidiaries and under
which the Company or any of its subsidiaries holds properties described
in the Prospectus, are in full force and effect, except where such
failure to be in full force and effect would not result in a Material
Adverse Effect, and neither the Company nor any subsidiary has any
notice of any claim or claims of any sort that singly or in the
aggregate would have a
6
Material Adverse Effect that has been asserted by anyone adverse to the
rights of the Company or any subsidiary under any of the leases or
subleases mentioned above, or affecting or questioning the rights of
the Company or such subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease.
(s) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940, as amended.
(t) Except as described in the Registration Statement and
except as would not, singly or in the aggregate, result in a Material
Adverse Effect, (A) neither the Company nor any of its subsidiaries is
in violation of any federal, state, local or foreign statute, law,
rule, regulation, ordinance, code, policy or rule of common law or any
judicial or administrative interpretation thereof, including any
judicial or administrative order, consent, decree or judgment, relating
to pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries and (D) there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of
its subsidiaries relating to Hazardous Materials or any Environmental
Laws.
(u) The Company is a "citizen of the United States" within the
meaning of Section 40102(a)(15) of Title 49 of the United States Code,
as amended, holding an air carrier operating certificate issued by the
Secretary of Transportation pursuant to Chapter 447 of Title 49 of the
United States Code, as amended, for aircraft capable of carrying 10 or
more individuals or 6,000 pounds or more of cargo.
Any certificate signed by any officer of the Company or any of
its subsidiaries and delivered to the Representative or counsel for the
Underwriters in connection with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered thereby, to
the Underwriter.
7
2. Purchase and Sale. (a) Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to the Underwriters, and each Underwriter agrees to
purchase from the Company, at the purchase price set forth in Schedule I hereto
the principal amount of the Underwritten Securities set forth opposite such
Underwriter's name in Schedule II hereto.
(b) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company hereby grants
an option to the several Underwriters, severally and not jointly, to purchase
Option Securities in aggregate principal amount of up to $26,250,000 at the same
price per Security (plus interest, if any, accrued and unpaid from the Closing
Date until the applicable Date of Delivery), as is applicable to the
Underwritten Securities. Such option will expire 30 days after the date of this
Agreement, and may be exercised in whole or in part from time to time only for
the purpose of covering over-allotments that may be made in connection with the
offering and distribution of the Underwritten Securities, upon notice by the
Representative to the Company setting forth the principal amount of Option
Securities as to which the several Underwriters are then exercising the option
and the time and date of payment and delivery for such Option Securities. Any
such time and date of delivery (a "Date of Delivery") shall be determined by the
Representative, but shall not be later than seven full business days and not
earlier than two full business days after the exercise of said option, nor in
any event prior to the Closing Date, as hereinafter defined, unless otherwise
agreed upon by the Representative and the Company. The principal amount of the
Option Securities to be purchased by each Underwriter shall be the same
percentage of the total principal amount of the Option Securities to be
purchased by the several Underwriters as such Underwriter is purchasing of the
Underwritten Securities, subject to such adjustments as the Representative in
its absolute discretion shall make to eliminate any Securities in a principal
amount of less than $1,000.
3. Delivery and Payment. Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option provided for in
Section 2(b) hereof shall have been exercised on or before the third Business
Day prior to the Closing Date) shall be made on the date and at the time
specified in Schedule I hereto, which date and time may be postponed by
agreement between the Representative and the Company (such date and time of
delivery and payment for the Underwritten Securities being herein called the
"Closing Date"). Delivery of the Underwritten Securities shall be made to the
Representative for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representative of the purchase
price thereof to or upon the order of the Company by wire transfer payable in
same-day funds to an account specified by the Company. Delivery of the
Underwritten Securities and the Option Securities shall be made through the
facilities of The Depository Trust Company unless the Representative shall
otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised
after the third Business Day prior to the Closing Date, the Company will deliver
the Option Securities (at the expense of the Company) to the Representative, at
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ the date specified by the
Representative (which shall be within three Business Days after exercise of said
option) for the respective accounts of the several Underwriters, against payment
8
by the several Underwriters through the Representatives of the purchase price
thereof to or upon the order of the Company by wire transfer payable in same-day
funds to an account specified by the Company. If settlement for the Option
Securities occurs after the Closing Date, the Company will deliver to the
Representative on the settlement date for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
5. Agreements. The Company agrees with the Representative
that:
(a) The Company, subject to Section 5(b), will comply with the
requirements of Rule 430A and will notify the Representative
immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of any request by the Commission
or its staff for any amendment of the Registration Statement, or any
Rule 462(b) Registration Statement, or for any supplement to the
Prospectus or for any additional information, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (iv) of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose. The Company will
promptly effect the filings necessary pursuant to Rule 424(b) and will
take such steps as it deems necessary to ascertain promptly whether the
form of prospectus transmitted for filing under Rule 424(b) was
received for filing by the Commission and, in the event that it was
not, it will promptly file such prospectus. The Company will make every
reasonable effort to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) The Company will give the Representative notice of its
intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)) or any amendment,
supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the Act, the Exchange Act or otherwise,
will furnish the Representative with copies of any such documents a
reasonable amount of time prior to such proposed filing or use, as the
case may be, and will not file or use any such document to which the
Representative or counsel for the Representative shall object.
(c) The Company has furnished or will, upon request, deliver
to the Representative and counsel for the Underwriters, without charge,
signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated
9
or deemed to be incorporated by reference therein) and signed copies of
all consents and certificates of experts, and will also, upon request,
deliver to each other Underwriter, without charge, a conformed copy of
the Registration Statement as originally filed and of each amendment
thereto (without exhibits). The copies of the Registration Statement
and each amendment thereto furnished to the Representative will be
identical to the electronically transmitted copies thereof filed with
the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(d) The Company will furnish to each Underwriter, without
charge, during the period when the Prospectus is required to be
delivered under the Act or the Exchange Act, such number of copies of
the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request. The Prospectus and any amendments or supplements
thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Prospectus as then supplemented would include
any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement or supplement the
Prospectus to comply with the Act or the rules thereunder, the Company
promptly will (1) notify the Representative of any such event, (2)
prepare and file with the Commission, subject to Section 5(b) hereof,
an amendment or supplement which will correct such statement or
omission or effect such compliance and (3) supply any supplemented
Prospectus to you in such quantities as you may reasonably request.
(f) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representative may designate and will maintain
such qualifications in effect so long as required for the distribution
of the Securities; provided that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not
now so qualified or to take any action that would subject it to service
of process in suits, other than those arising out of the offering or
sale of the Securities, or subject itself to taxation in any
jurisdiction where it is not now so subject.
(g) As soon as practicable, the Company will make generally
available to its security holders and to the Representative an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under
the Act.
(h) The Company will use the net proceeds received by it from
the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds."
10
(i) The Company will reserve and keep available at all times,
free of preemptive or other similar rights, a sufficient number of
shares of Common Stock for the purpose of enabling the Company to
satisfy any obligations to issue Underlying Securities upon the
conversion of Securities.
(j) The Company will use its best efforts to effect the
listing of the Underlying Securities on the New York Stock Exchange on
or prior to the Closing Date.
(k) During a period of 60 days from the date of the
Prospectus, the Company will not, without the prior written consent of
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., offer, sell, contract to sell, pledge, or
otherwise dispose of, (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition
(whether by actual disposition or effective economic disposition due to
cash settlement or otherwise) by the Company) directly or indirectly,
including the filing (or participation in the filing) of a registration
statement with the Commission in respect of, or establish or increase a
put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Exchange Act, any debt
securities that are convertible into Common Stock or other securities
similar to the Securities or Underlying Securities issued or guaranteed
by the Company or publicly announce an intention to effect any such
transaction. The foregoing sentence shall not apply to (A) the
Securities to be sold hereunder, (B) any shares of Common Stock issued
by the Company upon the exercise of an option or warrant or the
conversion of the Securities or a security outstanding on the date
hereof and referred to in the Prospectus, (C) any shares of Common
Stock issued or options to purchase Common Stock granted pursuant to
employee benefit plans of the Company or (D) any shares of Common Stock
issued pursuant to any non-employee director stock plan or dividend
reinvestment plan.
(l) The Company, during the period when the Prospectus is
required to be delivered under the Act or the Exchange Act, will file
all documents required to be filed with the Commission pursuant to the
Exchange Act within the time periods required by the Exchange Act and
the Exchange Act Regulations.
(m) Prior to the completion of the distribution of the
Securities, the Company will not take, directly or indirectly, any
action designed to or which has constituted or which might reasonably
be expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(n) The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and
of each amendment thereto, (ii) the preparation, printing and delivery
to the Representative of this Agreement, any Agreement among
Underwriters and such other documents as may be required in connection
with the offering, purchase, sale, issuance or delivery of the
Securities, (iii) the preparation, issuance and delivery of any
certificates
11
for the Securities to the Representative, including any stock or other
transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Securities to the Representative, (iv) the
fees and disbursements of the Company's counsel, accountants and other
advisors, (v) the qualification of the Securities under securities laws
in accordance with the provisions of Section 5(f) hereof, including
filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the
preparation of any Blue Sky Survey and any supplement thereto, (vi) the
printing and delivery to the Underwriters of copies of the Prospectus
and any amendments or supplements thereto, (vii) the preparation,
printing and delivery to the Representative of copies of the Blue Sky
Survey and any supplement thereto, (viii) the fees and expenses of the
Trustee and any transfer agent or registrar for the Securities and (ix)
the fees and expenses incurred in connection with the listing of the
Underlying Securities on the New York Stock Exchange.
6. Conditions to the Obligations of the Underwriters. The
obligation of the Underwriters to purchase the Underwritten Securities and the
Option Securities shall be subject to the accuracy of the representations and
warranties on the part of the Company contained herein as of the Execution Time
and the Closing Date, to the accuracy of the statements of the Company made in
any certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement, including any Rule 462(b)
Registration Statement, has become effective and on the Closing Date no
stop order suspending the effectiveness of the Registration Statement
shall have been issued under the Act or proceedings therefor initiated
or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Underwriter. A prospectus
containing the Rule 430A Information shall have been filed with the
Commission in accordance with Rule 424(b) (or a post-effective
amendment providing such information shall have been filed and declared
effective in accordance with the requirements of Rule 430A).
(b) At the Closing Date, the Representative shall have
received (i) the favorable opinion, dated as of the Closing Date, of
▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, to the effect set forth
in Exhibit A-1 hereto and to such further effect as counsel to the
Representative may reasonably request, and (ii) the favorable opinion,
dated as of the Closing Date, of ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Vice
President, General Counsel and Assistant Secretary of the Company, with
responsibility for the legal affairs of the Company and its
subsidiaries, to the effect set forth in Exhibit A-2 hereto and to such
further effect as counsel to the Representative may reasonably request.
(c) At the Closing Date, the Representative shall have
received the favorable opinion, dated as of the Closing Date, of
Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, in
form and substance reasonably satisfactory to the Representative. In
12
giving such opinion such counsel may rely, as to all matters governed
by the laws of jurisdictions other than the law of the State of New
York and the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Representative. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to
the extent they deem proper, upon certificates of officers of the
Company and its subsidiaries and certificates of public officials.
(d) At the Closing Date, there shall not have been, since the
date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business, properties or
results of operations of the Company and its subsidiaries taken as a
whole, whether or not arising in the ordinary course of business, and
the Representative shall have received a certificate of the President
or a Vice President of the Company and of the chief financial or chief
accounting officer of the Company, dated as of the Closing Date, to the
effect that (i) there has been no such material adverse change, (ii)
the representations and warranties in Section 1 hereof are true and
correct with the same force and effect as though expressly made at and
as of the Closing Date, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Date, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
pending or are contemplated by the Commission.
(e) At the Closing Date, the Representative shall have
received from Ernst & Young LLP a letter, dated as of the Closing Date,
in form and substance satisfactory to the Representative containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(f) At the Closing Date, the Underlying Securities shall have
been approved for listing on the New York Stock Exchange, subject only
to official notice of issuance.
(g) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction
of the possible change.
(h) The Company shall have received, pursuant to Section 3(j)
of the Purchase Agreement dated as of November 28, 2001, between the
Company and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
("▇▇▇▇▇▇▇ ▇▇▇▇▇"), a written consent from ▇▇▇▇▇▇▇ ▇▇▇▇▇ to the offering
of the Securities.
13
(i) In the event that the Underwriters exercise their option
provided in Section 2(b) hereof to purchase all or any portion of the
Option Securities, the representations and warranties of the Company
contained herein and the statements in any certificates furnished by
the Company or any subsidiary of the Company hereunder shall be true
and correct as of each Date of Delivery and, at the relevant Date of
Delivery, the Representative shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company
and of the chief financial or chief accounting officer of the
Company confirming that the certificate delivered at the
Closing Date pursuant to Section 6(d) hereof remains true and
correct as of such Date of Delivery.
(ii) Opinions of Counsel for Company. The favorable opinions
of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, and
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Vice President, General Counsel and
Assistant Secretary of the Company, in form and substance
satisfactory to counsel for the Underwriters, dated such Date
of Delivery, relating to the Option Securities to be purchased
on such Date of Delivery and otherwise to the same effect as
the opinions required by Section 6(b) hereof.
(iii) Opinion of Counsel for Underwriter. The favorable
opinion of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery to
the effect that they reaffirm the statements made in the
letter furnished pursuant to Section 6(c) hereof.
(j) At the Closing Date and at each Date of Delivery, counsel
for the Underwriters shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to pass
upon the issuance and sale of the Securities as herein contemplated, or
in order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Securities as herein contemplated shall be
satisfactory in form and substance to the Representative and counsel
for the Underwriters.
(k) If any condition specified in this Section shall not have
been fulfilled when and as required to be fulfilled, this Agreement,
or, in the case of any condition to the purchase of Option Securities,
on a Date of Delivery which is after the Closing Date, the obligation
of the Underwriters to purchase the Option Securities, may be
terminated by the Representative by notice to the Company at any time
at or prior to the Closing Date or such Date of Delivery, as the case
may be, and such termination shall be without liability of any party to
any other party except as provided in Section 5(n) and except that
14
Sections 1, 8, 9 and 10 shall survive any such termination and remain
in full force and effect.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to clause (i) of Section 11 hereof or
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally through the Representative on demand for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities. In the event that this Agreement is terminated
pursuant to clauses (ii), (iii) or (iv) of Section 11, the Company shall be
under no obligation to reimburse the Underwriters for their out-of-pocket
expenses as contemplated by this Section 7.
8. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter, and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
any Preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission provided
that any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen in accordance
with Section 8(c) below), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above;
15
provided, however, that this indemnity agreement shall not
apply to any loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with
written information furnished to the Company by the Representative
expressly for use in the Registration Statement (or any amendment
thereto), including the Rule 430A Information, if applicable, or any
Preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) The Underwriters severally and not jointly agrees to
indemnify and hold harmless the Company, its directors, each of its officers who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information or any Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information relating to an
Underwriter furnished to the Company by or on behalf of such Underwriter through
the Representative expressly for use in the Registration Statement (or any
amendment thereto) or such Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it
may have otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 8(b) above, counsel to the indemnified
parties shall be selected by the Underwriters (provided, however, that such
counsel shall be reasonably satisfactory to such indemnified parties), and, in
the case of parties indemnified pursuant to Section 8(a) above, counsel to the
indemnified parties shall be selected by the Company (provided, however, that
such counsel shall be reasonably satisfactory to such indemnified parties). An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 8 or Section 9 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising
16
out of such litigation, investigation, proceeding 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.
9. Contribution. If the indemnification provided for in
Section 8 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Securities pursuant to this Agreement or (ii) if the allocation provided
by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand
and the Underwriters on the other hand in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the Underwriters, as
set forth on the cover of the Prospectus.
The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and each Underwriter agrees that it would not be
just and equitable if contribution pursuant to this Section 9 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 9. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 9 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 9, no
Underwriter shall be required to contribute any amount in excess of the
underwriting discount or commission applicable to the Securities purchased by
such Underwriter.
17
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.
For purposes of this Section 9, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as the Company.
10. Representations and Indemnities to Survive.. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter, the
Company or any of the officers, directors, employees, agents or controlling
persons referred to in Sections 8 or 9 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 7, 8 and 9 hereof shall
survive the termination or cancellation of this Agreement.
11. Termination of Agreement. The Representative may terminate
this Agreement, by notice to the Company, at any time at or prior to Closing
Date (i) if there has been, since the time of execution of this Agreement or
since the respective dates as of which information is given in the Prospectus
(exclusive of any supplement thereto), any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries taken as a whole, whether
or not arising in the ordinary course of business; (ii) if there has occurred
any material adverse change in the financial markets in the United States or in
the international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Representative, impracticable or inadvisable to market the
Securities or to enforce contracts for the sale of the Securities; (iii) if
trading in any securities of the Company has been suspended or limited by the
Commission or the New York Stock Exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority; or
(iv) if a banking moratorium has been declared by either Federal or New York
authorities.
12. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriter shall be obligated severally to take up and
pay for (in the respective proportions which the amount of Securities set
18
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities set
forth in Schedule II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such non-defaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any
non-defaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 12, the Closing Date shall be postponed
for such period, not exceeding five Business Days, as the Representative shall
determine in order that the required changes in the Registration Statement and
the Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company and any non-defaulting Underwriter for
damages occasioned by its default hereunder.
13. Notices. All communications hereunder shall be in writing
and effective only on receipt, and, if sent to the Representative, shall be
mailed, delivered or telefaxed to the General Counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
(fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General Counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney Inc., at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention:
General Counsel; and notices to the Company shall be directed to it at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇, attention of Chief Financial Officer
and at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇, attention of General
Counsel.
14. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
15. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
16. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
17. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
18. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
19
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City or Houston.
"Commission" shall mean the Securities and Exchange
Commission.
"Common Stock" means the Company's Class B common stock.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus
included in the Registration Statement at the Effective Date that omits
Rule 430A Information.
"Prospectus" shall mean the prospectus relating to the
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time or, if no filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus relating to the Securities
included in the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in the second paragraph of this Agreement, including
exhibits and financial statements, as amended at the Execution Time
(or, if not effective at the Execution Time, in the form in which it
shall become effective) and, in the event any post-effective amendment
thereto or any Rule 462(b) Registration Statement becomes effective
prior to the Closing Date, shall also mean such registration statement
as so amended or such Rule 462(b) Registration Statement, as the case
may be. Such term shall include any Rule 430A Information deemed to be
included therein at the Effective Date as provided by Rule 430A.
"Rule 424," "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
20
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Representative and the Company in accordance with its terms.
Very truly yours,
CONTINENTAL AIRLINES, INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
Finance and Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
For itself and the other
Underwriter named in
Schedule II to the foregoing Agreement.
21
SCHEDULE I
Underwriting Agreement dated as of January 16, 2002
Registration Statement No. 333-71906
Representative: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Title, Purchase Price and Description of Securities:
Title: 4.50% Convertible Notes due 2007
Principal amount: $175,000,000
Over-allotment amount: $26,250,000
Purchase price (plus accrued
interest, if any, from
January 23, 2002): $170,187,500
Conversion provisions: Optional conversion by the holder at an initial
conversion price of $40 per share of
Common Stock
Redemption provisions: Optional redemption by the Company on or after
February 5, 2005
Redemption price (expressed as a percentage of the principal amount):
PERIOD REDEMPTION PRICE
------ ----------------
February 5, 2005 - January 31, 2006 101.80%
February 1, 2006 - January 31, 2007 100.90%
Sinking provisions: None
Closing Date, Time and Location: January 23, 2002, at 10:00 a.m., at
▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Type of Offering: Non-delayed
Sch I-1
SCHEDULE II
PRINCIPAL AMOUNT OF
UNDERWRITTEN
UNDERWRITERS SECURITIES TO BE PURCHASED
------------ --------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. $157,500,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated $ 17,500,000
Total ................... $175,000,000
============
Sch II-1
SCHEDULE III
List of Subsidiaries
Air Micronesia, Inc.
Continental Micronesia, Inc.
ExpressJet Holdings, Inc.
ExpressJet Airlines, Inc.
Sch III-1
Exhibit A-1
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 6(b)
(i) The Company 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, lease and operate its properties, to
conduct its business as described in the Prospectus, to issue the
Securities and to enter into and perform its obligations under the
Underwriting Agreement and the Indenture.
(ii) The execution and delivery of the Indenture have been
duly authorized by all necessary corporate action of the Company, and
the Indenture has been duly executed and delivered by the Company and
is a valid, binding and enforceable agreement of the Company.
(iii) The execution and delivery of the Securities have been
duly authorized by all necessary corporate action of the Company, and
the Securities have been duly executed and delivered by the Company and
are the valid, binding and enforceable obligations of the Company,
entitled to the benefits of the Indenture.
(iv) The holders of outstanding shares of capital stock of the
Company are not entitled to any statutory preemptive rights to
subscribe for the Securities or the Underlying Securities; and the
Underlying Securities into which the Securities are convertible at the
initial conversion price have been duly authorized by all necessary
corporate action of the Company and reserved for issuance upon
conversion and, upon issuance thereof on conversion of the Securities
in accordance with the Indenture and the terms of the Securities at
conversion prices at or in excess of the par value of such Underlying
Securities, will be validly issued, fully paid and nonassessable.
(v) The information in the Prospectus Supplement under
"Description of Notes" and "Description of Common Stock," in the
Prospectus under "Description of Debt Securities" and "Description of
Common Stock and Preferred Stock" and in the Registration Statement
under Item 15, insofar as such statements purport to summarize certain
provisions of the Securities, the Indenture, the Company's charter and
bylaws and matters of Delaware General Corporation Law, is correct in
all material respects.
(vi) The Registration Statement, including any Rule 462(b)
Registration Statement, has been declared effective under the 1933 Act;
any required filing of the Prospectus pursuant to Rule 424(b) has been
made in the manner and within the time period required by Rule 424(b);
and, to the best of our knowledge, no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or
threatened by the Commission; the
A1-1
Registration Statement, including any Rule 462(b) Registration
Statement and the Rule 430A Information, as applicable, the Prospectus,
excluding the documents incorporated by reference therein, and each
amendment or supplement to the Registration Statement and Prospectus,
excluding the documents incorporated by reference therein, as of their
respective effective or issue dates (other than the financial
statements and supporting schedules included therein or omitted
therefrom, as to which such counsel need express no opinion) appeared
on their face to have been appropriately responsive in all material
respects to the requirements of the Securities Act and the General
Rules and Regulations of the Commission thereunder.
(vii) The
Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(viii) The Company is not, and after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Prospectus, will not be, an "investment
company," as such term is defined in the 1940 Act.
(ix) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any United
States or Texas court or governmental authority or agency (other than
under the 1933 Act and the 1933 Act Regulations, which have been
obtained, or as may be required under the securities or blue sky laws
of the various states, as to which such counsel need express no
opinion) is necessary or required in connection with the due
authorization, execution and delivery of the
Underwriting Agreement,
the Indenture, the Securities or the Underlying Securities.
In addition, such counsel shall include a statement to the following
effect:
Because the primary purpose of such counsel's engagement was not to
establish or confirm factual matters or financial or accounting matters
and because of the wholly or partially non-legal character of many of
the statements contained in the Prospectus, such counsel is not passing
upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Prospectus,
and such counsel has not independently verified the accuracy,
completeness or fairness of such statements. Such counsel has
participated in conferences with officers and other representatives of
the Company and Continental and representatives of the independent
public accountants of the Company, and with the Underwriters'
representatives and legal counsel, at which conferences the contents of
the Registration Statement and the Prospectus and related matters were
discussed. Such counsel has also reviewed certain corporate documents
furnished to such counsel by the Company and Continental. Based on such
participation and review (relying as to matters of fact upon statements
made to us by representatives of the Company), and subject to the
limitations described above, nothing has come to such counsel's
attention that would lead such counsel to believe that the Registration
Statement or any amendment thereto, including the Rule 430A Information
(if applicable), (except for (i) financial statements and schedules
contained therein, including the notes thereto and the auditors'
reports thereon, (ii) the other financial information contained therein
or omitted therefrom and (iii) the exhibits thereto, as to which we
have not been asked to comment), at the time such Registration
Statement or any such
A1-2
amendment became effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus or any amendment or supplement thereto (except for (i)
financial statements and schedules contained therein, including the
notes thereto and the auditors' reports thereon, (ii) the other
financial information contained therein or omitted therefrom and (iii)
the exhibits thereto, as to which we have not been asked to comment),
as of their dates or as of the date hereof, included or includes an
untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely, as to
matters of fact (but not as to legal conclusions), to the extent they
deem proper, on certificates of responsible officers of the Company and
public officials. Such opinion shall not state that it is to be
governed or qualified by, or that it is otherwise subject to, any
treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA
Section of Business Law (1991).
▇▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF OPINION OF ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ESQ.,
TO BE DELIVERED PURSUANT TO
SECTION 6(b)
(i) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect.
(ii) To her knowledge and except as set forth in the
Prospectus, no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of capital
stock of or ownership interests in the Company are outstanding, except
as may have been issued or may exist under the Company's employee
benefit or similar plans.
(iii) To her knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation, to which the
Company or any subsidiary is a party, or to which the property of the
Company or any subsidiary is subject, before or brought by any court or
governmental agency or body, domestic or foreign, of a character
required to be disclosed in the Registration Statement which is not
adequately disclosed in the Prospectus.
(iv) Each Subsidiary has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would
not result in a Material Adverse Effect; except as otherwise disclosed
in the Registration Statement, all of the issued and outstanding
capital stock of each Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and, to the best of my
knowledge, is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(v) The documents incorporated by reference in the Prospectus
(other than the financial statements and supporting schedules included
therein or omitted therefrom, as to which such counsel need express no
opinion), when they were filed with the Commission complied as to form
in all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder.
A2-1
(vi) To her knowledge, neither the Company nor any subsidiary
is in violation of its charter or by-laws and no default by the Company
or any subsidiary exists in the due performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration
Statement, (except for such defaults that are not reasonably expected
to have a Material Adverse Effect).
(vii) To her knowledge, the execution, delivery and
performance of the
Underwriting Agreement, the Securities and the
Indenture and the consummation of the transactions contemplated in the
Underwriting Agreement, in the Indenture and in the Registration
Statement (including the issuance and sale of the Securities and the
use of the proceeds from the sale of the Securities as described in the
Prospectus under the caption "Use Of Proceeds") and compliance by the
Company with its obligations under the
Underwriting Agreement or the
Indenture do not and will not, whether with or without the giving of
notice or lapse of time or both, conflict with or constitute a breach
of, or default under or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company
or any subsidiary pursuant to any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or any other agreement
or instrument, known to her, to which the Company or any subsidiary is
a party or by which it or any of them may be bound, or to which any of
the property or assets of the Company or any subsidiary is subject
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that are not reasonably expected to have a Material
Adverse Effect), nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any subsidiary,
or any applicable law, statute, rule, regulation, judgment, order, writ
or decree, known to her, of any government, government instrumentality
or court, domestic or foreign, having jurisdiction over the Company or
any subsidiary or any of their respective properties, assets or
operations, which violation would result in a Material Adverse Effect.
(viii) Except as set forth in the Prospectus, no holders of
securities of the Company have rights to the registration of such
securities under the Registration Statement.
A2-2