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EXHIBIT 1(a)
SEMCO ENERGY, INC.
$60,000,000 principal amount of 8% Senior Notes due 2016
UNDERWRITING AGREEMENT
Dated: June 18, 2001
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TABLE OF CONTENTS
Page
SECTION 1. Representations and Warranties..................................................................1
SECTION 2. Sale and Delivery to Underwriters; Closing......................................................9
SECTION 3. Covenants and Agreements.......................................................................10
SECTION 4. Payment of Expenses............................................................................12
SECTION 5. Conditions of Underwriters' Obligations........................................................13
SECTION 6. Indemnification................................................................................14
SECTION 7. Contribution...................................................................................16
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.................................18
SECTION 9. Termination of Agreement.......................................................................18
SECTION 10. Default by the Company; Default by the Underwriters............................................18
SECTION 11. Notices........................................................................................19
SECTION 12. Parties........................................................................................19
SECTION 13. GOVERNING LAW AND TIME.........................................................................20
SECTION 14. Effect of Headings.............................................................................20
SCHEDULES
Schedule A - Terms.................................................................................Sch A-1
Schedule B - List of Subsidiaries..................................................................Sch B-1
Schedule C - Underwriters..........................................................................Sch C-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel.......................................................A-1
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SEMCO ENERGY, INC.
(a Michigan corporation)
$60,000,000
8% Senior Notes Due 2016
UNDERWRITING AGREEMENT
June 18, 2001
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
First of Michigan
A Division of ▇▇▇▇▇▇▇▇▇▇ & Co. Inc.
c/o ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
SEMCO Energy, Inc., a Michigan corporation (the "Company"),
agrees with ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. and First of
Michigan, a Division of ▇▇▇▇▇▇▇▇▇▇ & Co. Inc. (the "Underwriters") to issue and
sell to the Underwriters pursuant to the terms and subject to the conditions
stated herein $60,000,000 principal amount of 8% Senior Notes due 2016. The
Senior Notes are hereinafter referred to as the "Securities". The Securities
will be issued under an Indenture dated as of October 23, 1998, as supplemented
from time to time, between the Company and Bank One Trust Company, National
Association, successor to NBD Bank, as Trustee (as heretofore supplemented and
as to be supplemented by the Third Supplemental Indenture dated June 15, 2001
(the "Third Supplemental Indenture" and collectively, the "Indenture"). Certain
rights and terms of the Securities are set forth in Schedule A hereto.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to the Underwriters as of the date hereof and as of the
Closing Time referred to in Section 2(b) hereof, and agrees with the
Underwriters, as follows:
(i) Compliance with Registration Requirements. The
Company meets the requirement for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act") and the rules
and regulations promulgated by the Securities and Exchange
Commission (the "Commission") thereunder (the "Act
Regulations"). A registration statement on Form S-3, as
amended, with respect to the Securities and certain other
securities (File No. 333-91815), including a prospectus,
copies of which have been delivered to you, has been prepared
and filed by the Company
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and the Semco Capital Trusts I, II and III with the Commission
and, as amended, has been declared effective under the Act. No
stop order suspending the effectiveness of such registration
statement, as amended, has been issued and no proceeding for
that purpose has been initiated or, to the best knowledge of
the Company, threatened by the Commission. Such registration
statement (including all documents filed as part thereof or
incorporated by reference therein, but excluding any Forms
T-1, as amended), as amended and supplemented at the time it
became effective, is hereinafter referred to as to the
"Registration Statement." The Prospectus contained in the
Registration Statement at the time that the Registration
Statement was declared effective is hereinafter referred to as
the "Basic Prospectus."
The prospectus included in the Registration
Statement, as amended and supplemented to the date of this
Agreement (including all documents then incorporated by
reference therein and including the Preliminary Supplemented
Prospectus (hereinafter defined) as further supplemented by
the Final Supplemented Prospectus (hereinafter defined)), is
hereinafter referred to as the "Prospectus". Any reference
herein to the Registration Statement, the Prospectus, the
Basic Prospectus, the Preliminary Supplemented Prospectus or
the Final Supplemented Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein,
or deemed to be incorporated by reference therein, and filed
under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on or before the date of such Registration
Statement, Prospectus, Basic Prospectus, Preliminary
Supplemented Prospectus or Final Supplemented Prospectus. Any
reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement or the
Prospectus shall be deemed to refer to and include, without
limitation, the filing of any document under the Exchange Act
deemed to be incorporated therein by reference after the date
of such Registration Statement or Prospectus.
A prospectus supplement, subject to
completion, dated June 8, 2001 (the "Preliminary Supplemented
Prospectus") has been prepared and was filed pursuant to Rule
424(b)(2) under the Act ("Rule 424(b)(2)") on June 11, 2001. A
prospectus supplement, dated the date hereof, setting forth
the terms of the Securities and of their sale and distribution
(the "Final Supplemented Prospectus") has been prepared and
will be filed pursuant to Rule 424(b)(2).
The Preliminary Supplemented Prospectus was,
and the Prospectus delivered to the Underwriters for use in
connection with this offering will be, identical to the
electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted
by Regulation S-T.
(ii) Conformity to Requirements of the Act and TIA.
On the effective date of the Registration Statement, the
Registration Statement including the Basic Prospectus, as
amended and supplemented at that time, conformed in all
material respects to the requirements of the Act and the Trust
Indenture Act of 1939, as amended (the "TIA"), and the
applicable rules and regulations of the Commission thereunder,
and did not include any untrue statement of a material fact or
omit to
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state any material fact required to be stated therein or
necessary to make the statements therein not misleading; on
the date of the Preliminary Supplemented Prospectus, the
Preliminary Supplemented Prospectus conformed in all material
respects to the requirements of the Act and the Act
Regulations, and did not include any untrue statement of a
material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein
not misleading; and on the date of this Agreement, the
Registration Statement and the Prospectus conform, and at the
Closing Time (hereinafter defined) they will conform, in all
material respects to the requirements of the Act, the Act
Regulations and the TIA and the applicable rules and
regulations of the Commission thereunder, and on the date of
this Agreement do not, and at the Closing Time will not,
contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein 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 TIA of the Trustee or
(ii) the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by or on
behalf of the Underwriters specifically for inclusion in the
Registration Statement or the Final Prospectus (or any
supplement thereto).
(iii) Incorporated Documents. Each document filed or
to be filed pursuant to the Exchange Act and incorporated by
reference, or deemed to be incorporated by reference, in the
Registration Statement and the Prospectus (including any
document to be filed pursuant to the Exchange Act which will
constitute an amendment to the Prospectus) conformed or, when
so filed, will conform in all material respects to the
requirements of the Exchange Act and the applicable rules and
regulations of the Commission thereunder, and none of such
documents included or, when so filed, will include any untrue
statement of a material fact or omitted or, when so filed,
will omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the
light of the circumstances under which they were or are made,
not misleading.
(iv) Independent Accountants. The accountants who
certified the financial statements and supporting schedules
included or incorporated by reference in the Registration
Statement and the Prospectus are independent public
accountants with respect to the Company and its subsidiaries
as required by the Act and the Act Regulations.
(v) Financial Statements. The financial statements
included or incorporated by reference in the Registration
Statement and the Prospectus, together with the related
schedules and notes, present fairly the financial position of
(1) the Company and its consolidated subsidiaries and (2)
ENSTAR Natural Gas Company (a division of the Company) and
Alaska Pipeline Company (a subsidiary of the Company)
(collectively, "ENSTAR") at the dates indicated and the
statements of income, cash flows and changes in common
shareholders equity of the Company and its consolidated
subsidiaries and the statements of income
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and cash flows of ENSTAR for the periods specified; such
financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved, other than
as noted therein. The supporting schedules, if any,
incorporated by reference in the Registration Statement and
the Prospectus present fairly in accordance with GAAP the
information required to be stated therein. The pro forma
financial information, and the related notes thereto,
incorporated by reference in the Registration Statement and
the Prospectus, has been prepared in accordance with the
applicable published rules and regulations of the Commission
with respect to pro forma financial information, and the
assumptions used in preparing such information are reasonable.
The selected financial information and the financial data
included or incorporated by reference in the Prospectus
present fairly the information shown therein and have been
calculated in compliance with Item 503(d) of Regulation S-K of
the Commission and compiled on a basis consistent with that of
the audited financial statements incorporated by reference in
the Registration Statement and the Prospectus subject to year
end audit adjustments.
(vi) No Material Adverse Change in Business. 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 affairs or business prospects of the Company and its
subsidiaries, 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 respect to the Company and
its subsidiaries considered as one enterprise, and (C) except
for regular quarterly 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.
(vii) Good Standing of the Company. The Company has
been duly organized and is validly existing as a corporation
in good standing under the laws of the State of Michigan 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 Indenture; and the Company is duly
qualified as a foreign corporation to transact business and is
in good standing in Alaska and 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
(viii) Good Standing of Subsidiaries. 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
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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 securityholder of such Subsidiary. The
only subsidiaries of the Company are (a) the Subsidiaries
listed on Schedule B 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.
(ix) Authorization of Agreement. This Agreement has
been duly authorized, executed and delivered by the Company.
(x) Absence of Defaults and Conflicts. Neither the
Company nor any of its subsidiaries is, or will, as the result
of the transaction contemplated hereby, be in violation of its
charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries 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 (collectively, "Agreements and
Instruments"), or in violation of any applicable law, rule or
regulation or any judgment, order, writ or decree of any
government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of the
property or assets of the Company or any of its subsidiaries,
except for such defaults or violations that would not result
in a Material Adverse Effect.
(xi) Absence of Labor Dispute. No labor dispute with
the employees of the Company or any subsidiary exists or, to
the knowledge of the Company, is imminent which may reasonably
be expected to result in a Material Adverse Effect.
(xii) Absence of Proceedings. There is no action,
suit, proceeding, inquiry or investigation before or brought
by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company,
threatened, against or affecting the Company or any
subsidiary, which is required to be disclosed in the
Registration Statement (other than as disclosed therein, if
any), or which, individually or in the aggregate, might
reasonably be expected to result in a Material Adverse Effect,
or which, individually or in the aggregate, might reasonably
be expected to materially and adversely affect the properties,
assets or operations thereof or the consummation of the
transactions contemplated
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in this Agreement or the performance by the Company of its
obligations hereunder.
(xiii) Accuracy of Exhibits. There are no contracts
or documents which are required to be described in the
Registration Statement, the Prospectus or the documents
incorporated by reference therein or to be filed as exhibits
thereto which have not been so described and filed as
required.
(xiv) Possession of Intellectual Property. The
Company and its subsidiaries own or possess, or can acquire on
reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks,
service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on
the business now operated by them, and neither the Company nor
any of its subsidiaries has received any notice or is
otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render
any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its subsidiaries therein,
and which infringement or conflict (if the subject of any
unfavorable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would result in a
Material Adverse Effect.
(xv) Possession of Licenses and Permits. 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 except
where the failure to possess such a Governmental License would
not, singly or in the aggregate, have a Material Adverse
Effect; 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.
(xvi) Title to Property. The Company and its
subsidiaries have good and marketable title to all real
property owned by the Company and its subsidiaries and good
title to all other properties material to the business of the
Company and its subsidiaries considered as one enterprise, 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
material to
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the business of the Company and its subsidiaries, considered
as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the Prospectus, are
in full force and effect, and neither the Company nor any
subsidiary has any notice of any material claim of any sort
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.
(xvii) Investment Company Act - Company. The Company
is not, and upon the issuance and sale of the Securities as
herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus will not be, an
"investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
(xviii) Environmental Laws. 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 to the Company's
knowledge 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.
(xix) Authorization, etc., of the Indenture and the
Securities. The Indenture (other than the Third Supplemental
Indenture) has been, and at the Closing Time, the Third
Supplemental Indenture will have been duly authorized,
executed and delivered by the Company and is a valid and
legally binding agreement of the Company, enforceable against
the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy,
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insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by
general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or at
law); the Securities have been duly authorized by the Company
for offer, sale, issuance and delivery pursuant to this
Agreement and, when issued, authenticated and delivered in the
manner provided for in the Indenture and delivered against
payment of the consideration therefor, will constitute valid
and legally binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law); the
Securities will be in the form contemplated by the Indenture;
and each holder of Securities will be entitled to the benefits
of the Indenture; the Indenture and the Securities conform in
all material respects to the description thereof contained in
the Prospectus and will be in substantially the form filed or
incorporated by reference, as the case may be, as an exhibit
to the Registration Statement.
(xx) Company Consummation of Transactions. The
issuance by the Company of the Securities, the compliance by
the Company with all of the provisions of this Agreement, the
Securities and the Indenture, the execution, delivery and
performance by the Company of this Agreement, and the
consummation of the transactions contemplated herein and
therein and in the Registration Statement (including the use
of the proceeds from the sale of the Securities as described
in the Prospectus under the caption "Use of Proceeds") do not
and will not, whether with or without the giving of notice or
passage of time or both, conflict with or result in a breach
or violation of any of the terms or provisions of, or
constitute a default or Repayment Event (as defined herein)
under, or result in the creation of or imposition of any lien,
charge or encumbrance upon any property or assets of the
Company or any subsidiary pursuant to, the Agreements and
Instruments, nor will such action result in any violation of
the provisions of the Restated Articles of Incorporation or
By-laws of the Company or any subsidiary or any existing law
or statute or any order, rule, regulation, judgment, writ or
decree of any court, government or governmental agency or body
having jurisdiction over the Company or any subsidiary or any
of their assets, properties or operations; the Commission has
issued an order under the Act declaring the Registration
Statement effective and qualifying the Indenture under the
TIA, and no other filing with, or consent, approval,
authorization, license, order, registration, qualification or
decree of or with any such court or governmental authority,
agency or body, domestic or foreign, is necessary or required
in connection with the due authorization, execution and
delivery of this Agreement by the Company or the issuance,
sale and delivery of the Securities or the consummation by the
Company of the other transactions contemplated by this
Agreement or the Securities, except such as have already been
obtained under the Act or the Act Regulations or may be
required under state securities or Blue Sky laws. As used
herein, a "Repayment Event" means any event or condition which
gives the holder of any note, debenture or other evidence
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of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment
of all or a portion of such indebtedness by the Company or any
Subsidiary;
(xxi) Regulation M. None of the Company and its
subsidiaries or any of their respective directors, officers or
controlling persons, has taken, directly or indirectly, any
action resulting in a violation of Regulation M under the
Exchange Act, or designed to cause or result in, or that has
constituted or that reasonably might be expected to
constitute, the stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale
of the Securities.
(xxii) Public Utility Holding Company Act. The
Company is presently exempt from the provisions of the Public
Utility Holding Company Act of 1935 (except Section 9(a)(2)
thereof).
(b) Officer's Certificates. Any certificate signed by any
officer of the Company or any of its subsidiaries delivered to the Underwriters
or to counsel for the Underwriters shall be deemed a representation and warranty
by the Company to the Underwriters as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Sale to Underwriters. The Company agrees to issue and sell
to the Underwriters $60,000,000 principal amount of the Securities, and on the
basis of the representations, warranties, covenants and agreements herein
contained, but subject to the terms and conditions herein set forth, the
Underwriters agree to purchase the Securities from the Company, at a purchase
price of 97.5% of the principal amount thereof, in the amounts set forth on
Schedule C.
(b) Payment. The Securities will be represented by one or more
definitive global Securities in book-entry form which will be deposited with The
Depository Trust Company ("DTC") or its designated custodian. The Company will
deliver the Securities, against payment by or on behalf of the Underwriters of
the purchase price therefor by wire transfer as set forth below, by causing DTC
to credit the Securities to the account of the Underwriters. The time and date
of such delivery and payment shall be 10:00 A.M., New York City time, on June
21, 2001, or such other time not later than ten business days after such date as
shall be agreed upon by the Underwriters and the Company (such time and date of
payment and delivery being herein called the "Closing Time"). Payment shall be
made to the Company by wire transfer of immediately available funds to a bank
account located in the United States and designated in writing at least
forty-eight hours prior to the Closing Time by the Company to the Underwriters.
The documents to be delivered at the Closing Time by or on behalf of the parties
hereto pursuant to Section 5 hereof, including the cross-receipt for the
Securities and any additional documents requested by the Underwriters pursuant
to Section 5(g) hereof, will be delivered at such time and date at the offices
of LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be agreed upon by the Underwriters
and the Company.
(c) Denominations; Registration. Global certificates for the
Securities shall be in such denominations and registered in such names as the
Underwriters may request in
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writing at least one full business day before the Closing Time. The certificates
for the Securities will be made available for examination by the Underwriters at
the office of DTC or its designated custodian not later than 10:00 A.M. (Eastern
time) on the business day prior to the Closing Time.
SECTION 3. Covenants and Agreements.
The Company covenants and agrees with the Underwriters as
follows:
(a) Delivery of Prospectus. The Company will furnish without
charge to the Underwriters, the Preliminary Supplemented Prospectus and the
Prospectus, any documents incorporated by reference therein at or after the date
thereof (including documents from which information has been so incorporated)
and any supplements and amendments thereto the Underwriters may reasonably
request so long as the Underwriters are required to deliver a prospectus. The
Prospectus and any amendments or supplements thereto will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(b) Filing. The Company will cause the Final Supplemented
Prospectus to be filed pursuant to, and in compliance with, Rule 424(b)(2) and
will promptly advise the Underwriters (i) when any amendment to the Registration
Statement shall have been filed; provided, that, with respect to documents filed
pursuant to the Exchange Act and incorporated by reference into the Registration
Statement, such notice shall only be required during such time as the
Underwriters are required in the reasonable opinion of LeBoeuf, Lamb, ▇▇▇▇▇▇ &
▇▇▇▇▇▇, L.L.P., counsel for the Underwriters, to deliver a prospectus, (ii) of
any request by the Commission for any amendment of the Registration Statement,
(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 initiation or threatening of any
proceeding for such purpose. The Company will use its best efforts to prevent
the issuance of any such stop order or the suspension of any such qualification.
So long as any Underwriters are required in the reasonable opinion of LeBoeuf,
Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P. to deliver a prospectus, the Company will not file
any amendment to the Registration Statement or supplement to the Prospectus
unless the Company has furnished one copy of such amendment or supplement to the
Underwriters and to LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., and, if such
amendment or supplement is to be filed on or prior to the Closing Time, or under
circumstances where the Underwriters are required in the reasonable opinion of
LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., to deliver a Prospectus, the
Underwriters or LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., shall not reasonably
have objected thereto.
(c) Continual Compliance with Securities Laws. 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 Final Supplemented 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 Final
Supplemented Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (1) notify the
Underwriters of such event, (2) prepare
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and file with the Commission, subject to the prior review of the Underwriters,
an amendment or supplement which will correct such statement or omission or
effect such compliance and (3) supply any supplemented Final Supplemented
Prospectus to the Underwriters in such quantities as they may reasonably
request.
(d) Delivery of Registration Statements. The Company will
furnish or will deliver to the Underwriters and counsel for the Underwriters,
without charge, conformed 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 or deemed to be
incorporated by reference therein) and photo copies of all consents and
certificates of experts. The copies of the Registration Statement and each
amendment 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) Blue Sky Qualifications. The Company will use its best
efforts, in cooperation with the Underwriters, to qualify the Securities for
offering and sale under the applicable securities laws of such states and other
jurisdictions as the Underwriters may designate and to maintain such
qualifications in effect for a period of not less than one year from the
effective date of the Registration Statement; provided, however, that the
Company shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Securities have been so qualified,
the Company will file such statements and reports as may be required by the laws
of such jurisdiction to continue such qualification in effect for so long as may
be required in connection with the distribution of the Securities.
(f) Rule 158. The Company will timely file such reports
pursuant to the Exchange Act as are necessary in order to make generally
available to its securityholders and deliver to the Underwriters as soon as
practicable an earnings statement for the purposes of, and to provide the
benefits contemplated by, the last paragraph of Section 11(a) of the Act
(including Rule 158 thereunder).
(g) Use of Proceeds. 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".
(h) Restriction on Sale of Securities. During a period of 45
days from the date of the Prospectus, the Company will not, without the prior
written consent of the Underwriters, (i) directly or indirectly, offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of any securities substantially similar to the
Securities or file any registration statement under the Act with respect to any
of the foregoing or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of the Securities, whether any such swap or
transaction described in clause (i) or (ii) above is to be settled by delivery
of Securities or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to the Securities to be issued hereunder.
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(i) Reporting Requirements. 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
rules and regulations of the Commission thereunder.
(j) Regulation M. None of the Company and its subsidiaries or
any of their respective directors, officers or controlling persons, will take,
directly or indirectly, any action resulting in a violation of Regulation M
under the Exchange Act, or designed to cause or result in, or that has
constituted or that reasonably might be expected to constitute, the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company covenants and agrees with the
Underwriters that the Company will pay or cause to be paid all expenses incident
to the performance of its obligations under this Agreement, including, without
limitation, (i) the preparation, delivery, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the printing and delivery
to the Underwriters of this Agreement, 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 the
certificates for the Securities to the Underwriters, including any fees and
expenses relating to the eligibility and issuance of the Securities in
book-entry form and the cost of obtaining CUSIP or other identification numbers
for the Securities, (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 3(e) 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 the Blue Sky Survey and any supplement thereto, (vi) the preparation,
printing, mailing and delivery to the Underwriters of copies of the Preliminary
Supplemental Prospectus, and of the Prospectus and any amendments or supplements
thereto, (vii) the preparation, printing and delivery to the Underwriters of
copies of the Blue Sky Survey and any supplement thereto, (viii) the fees and
expenses of any transfer agent or registrar for the Securities, (ix) any fees
charged by securities rating services for rating the Securities and (x) the fees
and expenses of the Trustee under the Indenture and any agent of the Trustee and
the fees and disbursements of counsel for the Trustee.
(b) Termination of Agreement. If this Agreement is terminated
by the Underwriters in accordance with the provisions of Section 5, Section 9 or
Section 10(a) hereof, the Company shall reimburse the Underwriters for all of
its out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
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SECTION 5. Conditions of Underwriters' Obligations. The
obligations of the Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of officers of the Company delivered pursuant to the provisions
hereof, to the performance by the Company of its covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement has become effective and at Closing Time 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 Underwriters. A
Final Supplemented Prospectus containing information relating to the description
of the Securities, the specific method of distribution and similar matters shall
have been filed with the Commission in accordance with Rule 424(b)(2).
(b) Opinion of Counsel for Company. At Closing Time, the
Underwriters shall have received the favorable opinion, dated as of Closing
Time, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ PLLC, special counsel for the Company, and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, General Counsel to the Company, in form and substance satisfactory to
counsel for the Underwriters, in combination, substantially to the effect set
forth in Exhibit A hereto and to such further effect as counsel to the
Underwriters may reasonably request. Such counsel may 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.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Underwriters shall have received the favorable opinion, dated as of Closing
Time, of LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., counsel for the Underwriters,
with respect to such matters as it may reasonably request. In 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, upon the opinions of counsel to the Company. 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) No Adverse Occurrences and Officers' Certificates. At
Closing Time, there shall not have been, since the date hereof or since the
respective dates as of which information is given in the Prospectus, any change
that would have a Material Adverse Effect, and the Underwriters 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 Time, to the effect that (i) there has been no such change that
would have a Material Adverse Effect, (ii) the representations and warranties in
Section 1(a) hereof are true and correct with the same force and effect as
though expressly made at and as of Closing Time, (iii) the Company has complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time, 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, to such officer's
knowledge, are contemplated by the Commission.
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(e) Accountants' Comfort Letter. At the time of the execution
of this Agreement, the Underwriters shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
a letter dated such date, in form and substance satisfactory to the
Underwriters, 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 or incorporated
by reference in the Registration Statement and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, the
Underwriters shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a letter, dated as of
Closing Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (e) of this Section, except that the specified
date referred to shall be a date not more than three business days prior to
Closing Time.
(g) Additional Documents. At Closing Time 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 Underwriters and counsel for
the Underwriters.
(h) Rating. At the Closing Time there shall not have been
subsequent to the date hereof any decrease in the rating of any of the Company's
debt securities to a rating below one of the four highest rating categories for
debt securities ("Investment Grade") 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 to a rating below Investment Grade.
(i) Termination of Agreement. If any condition specified in
this Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Underwriters by notice to the Company at
any time at or prior to Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 6, 7 and 8 shall survive any such termination and remain
in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to
indemnify and hold harmless the Underwriters and each person, if any, who
controls an 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) 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 the Basic Prospectus, the Registration
Statement, the Preliminary Supplemented Prospectus, the Final
Supplemented Prospectus or the
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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 (subject
to Section 6(d) below) any such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as
incurred (including the reasonable fees and disbursements of
counsel chosen by the Underwriters), 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;
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
Underwriters expressly for use in the Registration Statement (or any amendment
thereto).
(b) Indemnification of Company, Directors and Officers. The
Underwriters severally agree to indemnify and hold harmless the Company, each of
the Company's directors, each of the Company's 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),
Preliminary Supplemented Prospectus, the Final Supplemented Prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by the Underwriters
expressly for use in the Registration Statement (or any amendment thereto) or
such Preliminary Supplemented Prospectus, the Final Supplemented Prospectus or
the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. 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. An indemnifying party will be entitled to
participate at its own expense in the defense, or, if it so elects, to assume
the defense of any suit brought to enforce any liability
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required to be indemnified hereunder, but, if such indemnifying party elects to
assume the defense, such defense shall be conducted by counsel chosen by the
Company in the case of parties indemnified pursuant to Section 6(a) above and by
the Underwriters in the case of parties indemnified pursuant to Section 6(b)
above; provided that such counsel shall be reasonably satisfactory to the
indemnified party. In the event that such indemnifying party elects to assume
the defense of any such suit and retain such counsel, the indemnified party in
the suit may retain additional counsel but shall bear the fees and expenses of
such counsel unless (i) such indemnifying party shall have specifically
authorized the retaining of such counsel or (ii) the parties to such suit
include the indemnified parties and the indemnified parties have been advised by
such counsel that one or more legal defenses may be available to them which may
not be available to such indemnifying party, in which case such indemnifying
party shall not be entitled to assume the defense of such suit on behalf of the
indemnified parties, notwithstanding its obligation to bear the reasonable fees
and expenses of such counsel, it being understood, however, that such
indemnifying party shall not, in connection with any one such suit or proceeding
or separate but substantially similar or related actions or proceedings in the
same jurisdiction arising out of the same general allegations or circumstances,
be liable for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to one local firm in each jurisdiction) at any time for
all of the indemnified parties, which firm shall be designated in writing by the
Underwriters in the case of parties indemnified pursuant to Section 6(a) above
and by the Company in the case of parties indemnified pursuant to Section 6(b)
above. Except as specified in Section 6(d) below, such indemnifying party shall
not be liable to indemnify any person for any settlement of any such claim
effected without such indemnifying party's consent. 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 6 or Section
7 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 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.
(d) Settlement without Consent if Failure to Reimburse. If at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel for which
indemnity is available hereunder, such indemnifying party agrees that it shall
be liable for any settlement of the nature contemplated by Section 6(a) effected
without its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement.
SECTION 7. Contribution.
If the indemnification provided for in Section 6 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
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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 received by the Company and the total
underwriting commission received by the Underwriters, in each case as set forth
on the cover of the Prospectus, bear to each other.
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 the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 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 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 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 7, the
Underwriters shall not 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 the Underwriters have otherwise been required to pay by reason of
any 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.
For purposes of this Section 7, 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
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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.
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery.
All representations, warranties, agreements, indemnities and
other statements contained in this Agreement or contained in certificates of
officers of the Company, its officers or any of its subsidiaries submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the Underwriters or a controlling
person, or by or on behalf of the Company and shall survive delivery of the
Securities to the Underwriters.
SECTION 9. Termination of Agreement.
This Agreement shall be subject to termination in the absolute
discretion of the Underwriters, by notice given to the Company prior to delivery
of and payment for the Securities, if at any time prior to such time (i) there
has been, subsequent to the date hereof or, if earlier, the dates as of which
information is given in the Registration Statement (exclusive of any amendment
thereof) and the Final Supplemented Prospectus (exclusive of any supplement
thereto), any change, or any development involving a prospective change, in or
affecting the business or properties of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final Supplemented
Prospectus (exclusive of any supplement thereto) the effect of which is, in the
reasonable judgment of the Underwriters, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Final Supplemented Prospectus (exclusive of any
supplement thereto), or (ii) there has been, subsequent to the date hereof, any
decrease in the rating of any of the Company's debt securities to a level below
Investment Grade 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 to a rating below Investment Grade, or (iii) if trading in the
common stock or any other security of the Company has been suspended or limited
by the Commission, the New York Stock Exchange, or if trading in securities
generally on the New York Stock Exchange shall have been suspended or limited or
minimum prices shall have been established on such Exchange, or (iv) a banking
moratorium shall have been declared either by Federal or New York or Michigan
State authorities, or (v) there shall have occurred any material adverse change
in the financial markets in the United States or any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the reasonable judgment of the Underwriters, impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Final Supplemented Prospectus (exclusive of any supplement
thereto).
SECTION 10. Default by the Company; Default by the
Underwriters.
(a) If the Company shall fail at Closing Time to sell the
number of Securities that it is obligated to sell hereunder, then this Agreement
shall terminate without any liability on the part of any non-defaulting party;
provided, however, that the provisions of Sections 1, 4, 6, 7
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and 8 shall remain in full force and effect. No action taken pursuant to this
Section shall relieve the Company from liability, if any, in respect of such
default.
(b) 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 Underwriters shall be obligated severally to take up and pay for (in
the respective proportions which the principal amount of Securities set forth
opposite their names in Schedule C hereto bears to the aggregate principal
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 principal amount of Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
principal amount of Securities set forth in Schedule C 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 nondefaulting
Underwriters do not purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Underwriter or the Company. In the event
of a default by any Underwriter as set forth in this Section 10(b), the Closing
Time shall be postponed for such period, not exceeding five business days, as
the Underwriters shall determine in order that the required changes in the
Registration Statement and the Final Supplemented 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 nondefaulting Underwriter for damages occasioned by its default
hereunder.
SECTION 11. Notices.
All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention: Debt Syndicate Department Manager; notices to the
Company shall be directed to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
SECTION 12. Parties.
This Agreement shall each inure to the benefit of and be
binding upon the Underwriters and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from the Underwriters shall be deemed to
be a successor by reason merely of such purchase.
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SECTION 13. GOVERNING LAW AND TIME.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER
TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
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 among the Underwriters and the Company in accordance with its terms.
Very truly yours,
SEMCO ENERGY, INC.
By:
-----------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇. ▇. ▇▇▇▇▇▇▇ & SONS, INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
FIRST OF MICHIGAN, A DIVISION OF ▇▇▇▇▇▇▇▇▇▇ & CO. INC.
By: ▇. ▇. ▇▇▇▇▇▇▇ & SONS, INC.
By:
----------------------------
Authorized Signatory
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SCHEDULE A
Title of Securities: 8% Senior Notes due 2016
Maturity: June 30, 2016
Interest Rate: 8% per annum
Interest Payment Dates: Quarterly on each March 31, June 30,
September 30 and December 31
Price to Public: 100% of principal amount
Company's Redemption Provision: Redeemable, in whole or in part, on or after
June 30, 2006 at a redemption price of 100% of
the principal amount thereof, plus accrued and
unpaid interest to the date of redemption
Note Holders' Redemption Provision: Subject to limited right of redemption upon the
death of the holder, as described in the
Prospectus
Sinking Funding Provisions: None
Sch A-1
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SCHEDULE B
List of subsidiaries of SEMCO Energy, Inc.
SEMCO Energy Ventures, Inc.
Alaska Pipeline Company
Sch B-1
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SCHEDULE C
The Underwriters severally agree to purchase the principal amount of
Senior Notes set forth opposite their respective names below:
Underwriter Principal Amount
----------- ----------------
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. $ 33,000,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. 15,000,000
▇▇▇▇▇▇▇▇▇▇ & Co. Inc. 12,000,000
----------
Total: $ 60,000,000
Sch C-1
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Exhibit A
FORMS OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Michigan;
(ii) the Company has corporate power 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 the Underwriting Agreement, the
Indenture and the Securities;
(iii) 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;
(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 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 arising
by operation of law, under the organizational documents of any Subsidiary or
under any agreement to which the Company or any Subsidiary is a party or
otherwise;
(v) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company;
(vi) the Registration Statement has been declared effective
under the Act; any required filing of the Prospectus pursuant to Rule 424(b)(2)
has been made in the manner and within the time period required by Rule
424(b)(2); and, to the best of our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued under the Act and no
proceedings for that purpose have been instituted or are pending or threatened
by the Commission;
(vii) the Registration Statement, 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 we express no opinion) complied as to
form in all material respects with the requirements of the Act and the Act
Regulations;
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(viii) the documents incorporated by reference in the
Prospectus (other than the financial statements and supporting schedules and
other financial data included or incorporated by reference therein or omitted
therefrom, as to which we express no opinion), when they were filed with the
Commission complied as to form in all material respects with the requirements of
the Exchange Act and the rules and regulations of the Commission thereunder;
(ix) there is not pending or, to the best of our knowledge,
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, which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to materially and
adversely affect the properties, assets or operations thereof or the
consummation of the transactions contemplated in the Underwriting Agreement or
the performance by the Company of its obligations thereunder;
(x) the information in the Final Supplemented Prospectus under
the caption "Description of the Senior Notes" and in the attached Basic
Prospectus under the caption "Description of Debt Securities" accurately
summarizes in all material respects the terms of the Securities and the
Indenture;
(xi) the Securities conform as to legal matters in all
material respects to the descriptions thereof contained in the Final
Supplemented Prospectus under the caption "Description of the Senior Notes" and
in the attached Basic Prospectus under the caption "Description of Debt
Securities";
(xii) all descriptions in the Registration Statement of
contracts and other documents to which the Company or its subsidiaries are a
party are accurate in all material respects; to the best of our knowledge, there
are no franchises, contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto other than those
described or referred to therein or filed or incorporated by reference as
exhibits thereto, and the descriptions thereof or references thereto are correct
in all material respects;
(xiii) the description of statutes and regulations set forth
in Part I of the Company's Annual Report on Form 10-K for the year ended
December 31, 2000 under the captions "Business--Gas Distribution--Rates and
Regulation" and "--Environmental Matters" fairly describe in all material
respects the portions of the statutes and regulations addressed thereby;
(xiv) neither the Company nor any subsidiary is in violation
of its charter or by-laws and, to the best of our knowledge, no default by the
Company or any subsidiary exists in the due performance or observance of any
material 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 or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement;
(xv) except as set forth in the Final Supplemented Prospectus,
the Company and its subsidiaries possess and are in compliance with all
approvals, certificates, authorizations, licenses and permits issued by the
appropriate state, Federal or foreign regulatory agencies or
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bodies necessary to conduct their business as described in the Final
Supplemented Prospectus, except where the failure to possess such approvals,
certificates, authorizations, licenses and permits to be in compliance therewith
would not be reasonably likely to have a Material Adverse Effect and to the
knowledge of such counsel, none of the Company or its subsidiaries has received
any notice of proceedings relating to the revocation or modification of any such
approval, certificate, authorization, license or permit which, individually or
in the aggregate, if it became the subject of an unfavorable decision, ruling or
finding, would be reasonably likely to have a Material Adverse Effect;
(xvi) no filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign (other than under the Act
and the 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 we need
express no opinion) is necessary or required in connection with (1) the due
authorization, execution and delivery of the Underwriting Agreement, (2) the
offering, issuance, sale and delivery of the Securities by the Company or (3)
the consummation by the Company of the transactions contemplated in the
Underwriting Agreement;
(xvii) the issuance and sale by the Company of the Securities,
the compliance by the Company with all of the provisions of the Underwriting
Agreement, the Securities and the Indenture, the execution, delivery and
performance by the Company of the Underwriting Agreement and the Indenture, and
the consummation of the transactions contemplated therein and in the
Registration Statement (including the use of the proceeds from the sale of the
Securities as described in the Prospectus under the caption "Use of Proceeds")
do not and will not, whether with or without the giving of notice or passage of
time or both, conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default or Repayment Event under, or
result in the creation of or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any subsidiary pursuant to, the
Agreements and Instruments, nor will such action result in any violation of the
provisions of the Restated Articles of Incorporation or By-laws of the Company
or any subsidiary or any existing law or statute or any order, rule, regulation,
judgment, writ or decree of any court, government or governmental agency or body
having jurisdiction over the Company or any Subsidiary or any of their assets,
properties or operations;
(xviii) the Company is not, and upon the issuance and sale of
the Securities as contemplated in the Underwriting Agreement and the application
of the net proceeds therefrom as described in the Prospectus will not be, an
"investment company" or an entity "controlled" by an "investment company," as
such terms are defined in the Investment Company Act of 1940, as amended;
(xix) the Securities are in the form prescribed in or pursuant
to the Indenture, have been duly and validly authorized for issuance and sale by
all necessary corporate action on the part of the Company and, when executed and
delivered by the Company and authenticated by the Trustee under the Indenture as
specified in or pursuant to the Indenture, will be valid and binding obligations
of the Company, enforceable in accordance with their terms, except as such
enforceability is subject to the effect of any applicable bankruptcy,
insolvency, reorganization or other law relating to or affecting creditors'
rights generally and to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
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(xx) the Indenture has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding obligation of the
Company, enforceable in accordance with its terms, except as such enforceability
is subject to the effect of any applicable bankruptcy, insolvency,
reorganization or other law relating to or affecting creditors' rights generally
and to general principles of equity (regardless of whether such enforceability
is considered in proceeding in equity or at law);
(xxi) the Indenture has been duly qualified under the TIA; and
(xxii) the Company is presently exempt from the provisions of
the Public Utility Holding Company Act of 1935 (except Section 9(a)(2) thereof).
Nothing has come to our attention that would lead us to
believe that the Registration Statement or any amendment thereto, (except for
financial statements and schedules and other financial data included or
incorporated by reference therein or omitted therefrom, as to which we need make
no comment), at the time such Registration Statement or any such 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 (except for financial
statements and schedules and other financial data included or incorporated by
reference therein or omitted therefrom, as to which we need make no comment), at
the respective times the Preliminary Supplemented Prospectus and the Final
Supplemented Prospectus were issued or at the Closing Time, 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).
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