200,000,000 AGGREGATE PRINCIPAL AMOUNT Western Refining, Inc.
Exhibit
1.2
$200,000,000
AGGREGATE PRINCIPAL AMOUNT
5.75%
CONVERTIBLE SENIOR NOTES
DUE
2014
dated
June 4, 2009
▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co.
June 4,
2009
▇▇▇▇▇▇▇
LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇▇,
▇▇▇▇▇ & CO.
As
Representatives of the several Underwriters
c/▇
▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
One Bryant Park
One Bryant Park
New York,
NY 10036
Ladies
and Gentlemen:
Introductory. Western
Refining, Inc., a Delaware corporation (the “Company”), proposes to issue and
sell to the several underwriters named in Schedule A (the
“Underwriters”) $200,000,000 in aggregate principal amount of its 5.75%
Convertible Senior Notes due 2014 (the “Firm Debentures”). In addition, the
Company has granted to the Underwriters an option to purchase up to an
additional $30,000,000 in aggregate principal amount of its 5.75% Convertible
Senior Notes due June 15, 2014 (the “Optional Debentures” and, together with the
Firm Debentures, the “Debentures”), as provided in Section 2. ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (“▇▇▇▇▇▇▇”) and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
have agreed to act as representatives of the several Underwriters (in such
capacity, the “Representatives”) in connection with the offering and sale of the
Debentures. To the extent there are no additional Underwriters listed on
Schedule A other than you, the terms Representatives and Underwriters as used
herein shall mean you, as Underwriters. The terms Representatives and
Underwriters shall mean either the singular or plural as the context
requires.
The
Debentures will be convertible on the terms, and subject to the conditions, set
forth in the indenture (the “Indenture”) to be dated as of the Closing Date (the
“Base Indenture”) between the Company and The Bank of New York Mellon Trust
Company, N.A., as trustee (the “Trustee”), as supplemented by the First
Supplemental Indenture to be dated as of the Closing Date (as defined herein)
(the “Supplemental Indenture” and together with the Base Indenture, the
“Indenture”) between the Company and the Trustee. As used herein, “Conversion
Shares” means the fully paid, nonassessable shares of common stock, par value
$0.01 per share, of the Company (the “Common Stock”) to be received by the
holders of the Debentures upon conversion of the Debentures pursuant to the
terms of the Debentures and the Indenture. The Debentures will be convertible
initially at a conversion rate of 92.5926 shares per $1,000 principal amount of
the Debentures, on the terms, and subject to the conditions, set forth in the
Indenture.
As more
fully described in the Prospectus (as defined below), concurrently with this
offering, the Company is offering 20,000,000 shares of its Common Stock (or up
to 23,000,000 shares if the underwriters exercise their option to purchase
additional shares) (“Offered Shares”) and $600,000,000 aggregate principal
amount of its senior secured notes due 2017 (the “Secured Notes”) in a private
offering. In connection with the offering of Secured Notes, the Company will
enter into a separate indenture (“Secured Notes Indenture”).
The
Company has entered into (i) the Term Loan Credit Agreement, dated May 31, 2007,
among the Company, Bank of America, N.A., as administrative agent, and the
lenders party thereto, as amended by the First Amendment to the Term Loan Credit
Agreement dated as of June 30, 2008, and the Second Amendment to the Term Loan
Credit Agreement dated as of May 29, 2009 (as so amended, the “Term Loan
Agreement”), (ii) the Revolving Credit Agreement, dated May 31, 2007, among the
Company, Bank of America, N.A., as administrative agent, swing line lender and
L/C issuer, and the lenders party thereto, as amended by the First Amendment to
the Revolving Credit Agreement dated as of June 30, 2008 and the Second
Amendment to the Revolving Credit Agreement dated as of May 29, 2009 (as so
amended, the “Revolving Credit Agreement”) and (iii) the Intercreditor Agreement
dated as of May 31, 2007, among the Company, the Subsidiaries, the Revolver
Administrative Agent, the Term Administrative Agent, and the Control Agent named
therein, as amended by the First Amendment to the Intercreditor Agreement dated
as of June 30, 2009 (the “Revolver/Term Loan Intercreditor Agreement”, and
together with the Term Loan Agreement and the Revolving Credit Agreement, the
“Credit Documents”). In connection with the issuance of the Debentures and
Secured Notes, the Company will enter into (A) an amendment to the Revolver/Term
Loan Intercreditor Agreement to be dated as of the closing date of the Secured
Notes offering (“Revolver/Term Intercreditor Agreement Amendment”) among the
Company, the Subsidiaries, the collateral trustee and the other parties named
therein and (B) a Collateral Trust and Intercreditor Agreement to be dated as of
the closing date of the Secured Notes offering (the “Collateral Trust and
Intercreditor Agreement”, together with the Revolver/Term Intercreditor
Agreement Amendment, the “Intercreditor Agreements”) among the Company, the
guarantors, the collateral trustee and the other parties named
therein.
The
Secured Notes Indenture, Security Documents, the Credit Documents and the
Intercreditor Agreements are hereinafter referred to collectively as the
“Transaction Documents”.
The
Company hereby confirms its engagement of ▇▇▇▇▇▇▇ as, and ▇▇▇▇▇▇▇ hereby
confirms its agreement with the Company to render services as, a “qualified
independent underwriter”, within the meaning of Section (b)(15) of Rule 2720 of
the Conduct Rules of The National Association of Securities Dealers, Inc. (the
“NASD Conduct Rules”) with respect to the offering and sale of the Debentures.
▇▇▇▇▇▇▇, solely in its capacity as the qualified independent underwriter and not
otherwise, is referred to herein as the “QIU”. ▇▇▇▇▇▇▇ will not receive any
compensation for acting in this capacity in connection with this offering and
sale of the Debentures. The price at which the Debentures will be sold to the
public shall not be higher than the maximum price recommended by the
QIU.
The
Company hereby confirms its agreements with the Underwriters and the QIU as
follows:
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The
Company hereby represents and warrants to, and covenants with, each Underwriter
and the QIU as follows:
(a) Registration Statement. The
Company has prepared and filed with the Securities and Exchange Commission
(the “Commission”) a registration statement on Form S-3 (File No. 333-150238),
which contains a base prospectus (the “Base Prospectus”), to be used in
connection with the public offering and sale of the Debentures. Such
registration statement, as amended, including the financial statements, exhibits
and schedules thereto, at each time of effectiveness under the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder
(collectively, the “Securities Act”), including any required information deemed
to be a part thereof at the time of effectiveness pursuant to Rule 430A, 430B
and 430C under the Securities Act or the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder (collectively, the
“Exchange Act”), is called the “Registration Statement.” Any registration
statement filed by the Company pursuant to Rule 462(b) under the Securities Act
is called the “Rule 462(b) Registration Statement,” and from and after the date
and time of filing of the Rule 462(b) Registration Statement the term
“Registration Statement” shall include the Rule 462(b) Registration Statement.
Any preliminary prospectus supplement to the Base Prospectus that describes the
Debentures and the offering thereof and is used prior to filing of the Final
Prospectus is called, together with the Base Prospectus, a “preliminary
prospectus.” The term “Prospectus” shall mean the final prospectus relating to
the Debentures that is first filed pursuant to Rule 424(b) under the Securities
Act after the date and time that this Agreement is executed and delivered by the
parties hereto (the “Execution Time”). Any reference herein to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Securities Act; any reference to any amendment or
supplement to any preliminary prospectus or the Prospectus shall be deemed to
refer to and include any documents filed after the date of such preliminary
prospectus or Prospectus, as the case may be, under the Exchange Act, and
incorporated by reference in such preliminary prospectus or Prospectus, as the
case may be; and any reference to any amendment to the Registration Statement
shall be deemed to refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date
of the Registration Statement that is incorporated by reference in the
Registration Statement.
(b) Compliance with Registration and
Exchange Act Requirements. The Registration Statement has been
declared effective by the Commission under the Securities Act. The Company has
complied to the Commission’s satisfaction with all requests of the Commission
for additional or supplemental information. No stop order suspending the
effectiveness of the Registration Statement is in effect, the Commission has not
issued any order or notice preventing or suspending the use of the Registration
Statement, any preliminary prospectus or the Prospectus and no proceedings for
such purpose or pursuant to Section 8A of the Securities Act against the Company
or related to the offering have been instituted or are pending or, to the
knowledge of the Company, are contemplated or threatened by the
Commission.
Each
preliminary prospectus and the Prospectus when filed complied or will comply, as
the case may be, in all material respects with the Securities Act and, if filed
by electronic
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The
documents incorporated by reference in the Prospectus, when they became
effective or were filed with the Commission, as the case may be, conformed in
all material respects to the requirements of the Securities Act or the Exchange
Act, as applicable. Any further documents so filed and incorporated by reference
in the Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the Securities Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder.
(c) Disclosure Package. The term
“Disclosure Package” shall mean (i) the Base Prospectus, as supplemented by a
preliminary prospectus supplement, as may be further amended or supplemented
prior to the Applicable Time, (ii) the Final Term Sheet (as defined herein) and
(iii) any other issuer free writing prospectuses as defined in Rule 433 under
the Securities Act (each, an “Issuer Free Writing Prospectus”), if any, that the
parties hereto shall hereafter expressly agree in writing to treat as part of
the Disclosure Package. As of 7:30 a.m., (New York time), on June 5, 2009 (the
“Applicable Time”), the Disclosure Package did not contain any untrue statement
of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading. The preceding sentence does not apply to statements in or
omissions from the Disclosure Package based upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives expressly for use therein, it being understood and agreed that
the only such information furnished by any Underwriter consists of the
information described as such in Section 8 hereof. No statement of material fact
included in the Prospectus will be omitted from the Disclosure Package available
at the Applicable Time,
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(d) Company Not Ineligible
Issuer. (i) At the earliest time after the filing of the Registration Statement
relating to the Debentures that the Company or another offering participant made
a bona fide offer
(within the meaning of Rule 164(h)(2)) of the Securities Act and (ii) as of the
date of the execution and delivery of this Agreement (with such date being used
as the determination date for purposes of this clause (ii)), the Company was not
and is not an Ineligible Issuer (as defined in Rule 405 under the Securities
Act), without taking account of any determination by the Commission pursuant to
Rule 405 under the Securities Act that it is not necessary that the Company be
considered an Ineligible Issuer.
(e) Issuer Free Writing
Prospectuses. Each Issuer Free Writing Prospectus, as of its issue date and at all
subsequent times through the completion of the offering of Debentures under this
Agreement or until any earlier date that the Company notified or notifies the
Representatives as described in the next sentence, did not, does not and will
not include any information that conflicted, conflicts or will conflict with the
information contained in the Registration Statement, including any prospectus or
prospectus supplement that is or becomes part of the Registration Statement. If
at any time following issuance of an Issuer Free Writing Prospectus there
occurred or occurs an event or development as a result of which such Issuer Free
Writing Prospectus conflicted or would conflict with the information contained
in the Registration Statement, the Company has promptly notified or will
promptly notify the Representatives and has promptly amended or supplemented or
will promptly amend or supplement, at its own expense, such Issuer Free Writing
Prospectus to eliminate or correct such conflict. The foregoing two sentences do
not apply to statements in or omissions from any Issuer Free Writing Prospectus
based upon and in conformity with written information furnished to the Company
by any Underwriter through the Representatives expressly for use therein, it
being understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section 8
hereof.
(f) Accuracy of Statements. The
statements in the Disclosure Package and the Prospectus under the
headings “Certain U.S. Federal Income Tax Considerations,” “Description of
Notes,” “Description of Western Refining Capital Stock” and “Concurrent
Financing Transactions” and in Company’s Annual Report on Form 10-K for the
fiscal year ended December 31, 2008 under the caption “Business—Governmental
Regulation” and in or incorporated by reference from the Form 8-A dated January
9, 2006 insofar as such statements summarize legal matters, agreements,
documents or proceedings discussed therein, are accurate and fair summaries of
such legal matters, agreements, documents or proceedings.
(g) Distribution of Offering Material By
the Company. The Company has not distributed and will
not distribute, prior to the later of the last Subsequent Closing Date (as
defined below) and the completion of the Underwriters’ distribution of the
Debentures, any offering material in connection with the offering and sale of
the Debentures other than a preliminary prospectus, the Prospectus, any
Permitted Free Writing Prospectus (as defined herein), the Final Term Sheet (as
defined herein) or the Registration Statement.
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(h) The Underwriting
Agreement. This Agreement has been duly authorized, executed and delivered
by the Company.
(i) Authorization of the
Indenture. The Indenture has been duly authorized by the Company and, upon the
effectiveness of the Registration Statement, will be qualified under the Trust
Indenture Act of 1939, as amended (“the Trust Indenture Act”); on the Closing
Date, the Indenture will have been duly executed and delivered by the Company
and, assuming due authorization, execution and delivery thereof by the Trustee,
will constitute a legally valid and binding agreement of the Company enforceable
against the Company in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights and remedies of creditors or by
general equitable principles; and the Indenture conforms in all material
respects to the description thereof contained in the Disclosure Package and the
Prospectus.
(j) Authorization of the
Debentures. The Debentures have been duly authorized by the Company; when the
Debentures are executed, authenticated and issued in accordance with the terms
of the Indenture and delivered to and paid for by the Underwriters pursuant to
this Agreement on the respective Closing Date (assuming due authentication of
the Debentures by the Trustee), such Debentures will constitute legally valid
and binding obligations of the Company, entitled to the benefits of the
Indenture and 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 relating to or affecting the
rights and remedies of creditors or by general equitable principles; and the
Debentures will conform in all material respects to the description thereof
contained in the Disclosure Package and the Prospectus.
(k) Authorization of the Conversion
Shares. The Conversion Shares have been duly authorized and reserved
and, when issued upon conversion of the Debentures in accordance with the terms
of the Debentures and the Indenture, will be validly issued, fully paid and
nonassessable, and the issuance of such shares will not be subject to any
preemptive or similar rights.
(l) No Stamp or Transfer Taxes.
There are no stamp or other issuance or transfer taxes or duties or
other similar fees or charges under federal law, the laws of any state, or any
political subdivisions thereof, or any other U.S. or non-U.S. governmental
authority required to be paid in connection with the execution and delivery of
this Agreement or the issuance or sale by the Company of the Debentures or upon
the issuance of Common Stock upon the conversion thereof.
(m) No Applicable Registration or Other
Similar Rights. There are no persons with registration or other
similar rights to have any equity or debt securities registered for sale under
the Registration Statement or included in the offering contemplated by this
Agreement, except for such rights as have been duly waived.
(n) No Material Adverse Change.
Except as otherwise disclosed in the Disclosure Package and the
Prospectus, subsequent to the respective dates as of which information is given
in the Disclosure Package: (i) there has been no material adverse change, or any
development
6
(o) Independent Accountants.
Deloitte & Touche LLP and Ernst & Young LLP, who have expressed their
opinion with respect to the financial statements of the Company (which term as
used in this Agreement includes the related notes thereto) filed with the
Commission as a part of or incorporated by reference in the Registration
Statement and included or incorporated by reference in the Disclosure Package
and the Prospectus, are (or, with respect to Ernst & Young LLP, at the
relevant time were) independent registered public accountants with respect to
the Company as required by the Securities Act and the Exchange Act. Deloitte
& Touche LLP, who have expressed their opinion with respect to the financial
statements of Giant Industries, Inc. (which term as used in this Agreement
includes the related notes thereto) filed with the Commission as a part of or
incorporated by reference in the Registration Statement and included or
incorporated by reference in the Disclosure Package and the Prospectus, were at
the relevant time independent registered public accountants with respect to
Giant Industries, Inc. as required by the Securities Act and the Exchange
Act.
(p) Preparation of the Financial
Statements. The financial statements of the Company filed with the
Commission as a part of or incorporated by reference in the Registration
Statement and included or incorporated by reference in the Disclosure Package
and the Prospectus present fairly in all material respects the consolidated
financial position of the Company and its Subsidiaries as of and at the dates
indicated and the results of their operations and cash flows for the periods
specified on the basis stated therein. Such financial statements comply as to
form with the applicable accounting requirements of the Securities Act and have
been prepared in conformity with generally accepted accounting principles
(“GAAP”) applied on a consistent basis throughout the periods involved, except
as may be expressly stated in the related notes thereto. No other financial
statements or supporting schedules are required to be included or incorporated
by reference in the Registration Statement. The financial data set forth in the
preliminary prospectus and the Prospectus under the captions “Summary Financial
Data” and “Capitalization” fairly present the information set forth therein on a
basis consistent with that of the audited financial statements contained in the
Disclosure Package and the Prospectus. The Company’s ratios of earnings to fixed
charges set forth in the Disclosure Package and the Prospectus have been
calculated in compliance with Item 503(d) of Regulation S-K under the Securities
Act.
(q) Organization and Good Standing of
the Company and its Subsidiaries. Each of the Company and its
Subsidiaries has been duly organized and is validly existing in good standing
under the laws of the jurisdiction of its organization and has power and
authority to own
7
(r) Capitalization and Other Capital
Stock Matters. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Disclosure Package and the
Prospectus under the caption “Capitalization” (other than for subsequent
issuances, if any, pursuant to employee benefit plans described in the
Disclosure Package and the Prospectus). The Common Stock (including the Shares)
conforms in all material respects to the description thereof contained in the
Disclosure Package and the Prospectus. All of the issued and outstanding shares
of Common Stock have been duly authorized and validly issued, are fully paid and
nonassessable and have been issued in compliance with federal and state
securities laws. None of the outstanding shares of Common Stock were issued in
violation of any preemptive rights, rights of first refusal or other similar
rights to subscribe for or purchase securities of the Company. There are no
authorized or outstanding options, warrants, preemptive rights, rights of first
refusal or other rights to purchase, or equity or debt securities convertible
into or exchangeable or exercisable for, any capital stock of the Company or any
of its Subsidiaries other than those described in the Disclosure Package and the
Prospectus. The description of the Company’s stock plans or arrangements, and
the rights granted thereunder, set forth or incorporated by reference in the
Disclosure Package and the Prospectus accurately and fairly summarizes in all
material respects such plans, arrangements and rights.
(s) Conformance of Debentures.
The Debentures conform in all material respects to the description thereof
contained in the Disclosure Package and the Prospectus.
(t) Non-Contravention of Existing
Instruments; No Further Authorizations or Approvals Required. Neither the
Company nor any of its Subsidiaries is (i) in violation or in default (or, with the
giving of notice or lapse of time, would be in default) (“Default”) under its
respective organizational documents, (ii) in Default under any indenture,
mortgage, loan or credit agreement, deed of trust, note, contract, franchise,
lease or other agreement, obligation, condition, covenant or instrument to which
the Company or such Subsidiary is a party or by
8
(u) No Material Actions or
Proceedings. Except as disclosed in the Disclosure Package and the
Prospectus, there are no legal or governmental actions, suits or proceedings
pending or, to the Company’s knowledge, threatened (i) against or affecting the
Company or any of its Subsidiaries, (ii) which has as the subject thereof any
officer or director of, or property owned or leased by, the Company or any of
its Subsidiaries or (iii) relating to environmental or discrimination matters,
where in any such case (A) there is a reasonable possibility that such action,
suit or proceeding might be determined adversely to the Company or such
Subsidiary and (B) any such action, suit or proceeding, if so determined
adversely, would reasonably be expected to have a Material Adverse Effect or
adversely affect the consummation of the transactions contemplated by this
Agreement.
9
(w) Intellectual Property Rights.
The Company and its Subsidiaries own, possess, license or have other
rights to use, all material patents, patent applications, trade and service
marks, trade and service mark registrations, trade names, copyrights, licenses,
inventions, trade secrets, technology, know-how and other intellectual property
(collectively, the “Intellectual Property”) necessary for the conduct of their
respective businesses as now conducted, and the Company has no reason to believe
that the conduct of it or its Subsidiaries’ respective businesses will conflict
in any material respect with, and has not received any notice of any claim of
conflict with, any such rights of other parties.
(x) All Necessary Permits, etc.
Except as disclosed in the Disclosure Package and the Prospectus, the Company
and each Subsidiary possess such valid and current licenses, certificates,
authorizations or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct their respective businesses
as described in the Disclosure Package and the Prospectus, and neither the
Company nor any Subsidiary has received any notice of proceedings relating to
the revocation or modification of, or non- compliance with, any such license,
certificate, authorization or permit which, individually or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would have a Material
Adverse Effect.
(y) Title to Properties. Except
as otherwise disclosed in the Disclosure Package and the Prospectus, the
Company and each of its Subsidiaries has good and marketable title to all of the
properties and assets reflected as owned in the financial statements referred to
in Section 1(p) above, in each case free and clear of any security interests,
mortgages, liens, encumbrances, equities, claims and other defects, except such
(i) that do not materially interfere with the use made or proposed to be made of
such property by the Company or such Subsidiary, (ii) granted pursuant to the
Transaction Documents and (iii) that would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse
Effect.
(z) Tax Law Compliance. The
Company and its consolidated Subsidiaries have filed all necessary federal,
state, local and foreign income and franchise tax returns in a timely manner and
have paid all taxes required to be paid by any of them and, if due and payable,
any related or similar assessment, fine or penalty levied against any of them,
except for any taxes, assessments, fines or penalties as may be being contested
in good faith and by appropriate proceedings and those for which there would not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect. The Company has made appropriate provisions in the applicable
financial statements referred to in Section 1(p) above in respect of all
federal, state, local and foreign income and franchise taxes for all current or
prior periods as to which the tax liability of the Company or any of its
consolidated Subsidiaries has not been finally determined.
(aa)
Company Not an “Investment
Company”. The Company is not, and after giving effect to the offering and
sale of the Debentures and the application of the proceeds thereof as described
in each of the preliminary prospectus and the Prospectus, will not be, required
to register as an “investment company” as such term is defined in the Investment
Company Act of
10
(bb) Compliance with Reporting
Requirements. The Company is subject to and in full compliance with the
reporting requirements of Section 13 or Section 15(d) of the Exchange
Act.
(cc) Insurance. Each of the
Company and its Subsidiaries have insurance coverage in such amounts and with
such deductibles and covering such risks that the Company and its Subsidiaries
deem to be adequate and customary for the conduct of their respective
businesses, including, but not limited to, policies covering real and personal
property owned or leased by the Company and its Subsidiaries against theft,
damage, destruction, acts of vandalism and earthquakes. All policies of
insurance and fidelity or surety bonds insuring the Company or any of its
Subsidiaries or their respective businesses, assets, employees, officers and
directors are in full force and effect. The Company and its Subsidiaries are in
compliance with the terms of such policies and instruments in all material
respects; and there are no material claims by the Company or any of its
Subsidiaries under any such policy or instrument as to which any insurance
company is denying liability or defending under a reservation of rights clause;
and neither the Company nor any such Subsidiary has been refused any insurance
coverage sought or applied for. The Company has no reason to believe that it or
any Subsidiary will not be able (i) to renew its existing insurance coverage as
and when such policies expire or (ii) to obtain comparable coverage as may be
necessary or appropriate to conduct its business as now conducted and at a cost
that would not have a Material Adverse Effect.
(dd) No Restrictions on Dividends or
Other Distributions. No Subsidiary of the Company is currently
prohibited, directly or indirectly, from paying any dividends or distributions
to the Company, from making any other distribution on such Subsidiary’s equity
interests, from repaying to the Company any loans or advances to such Subsidiary
from the Company or from transferring any of such Subsidiary’s property or
assets to the Company or any other Subsidiary of the Company, except as
described in or contemplated by the Disclosure Package and the
Prospectus.
(ee) No Price Stabilization or
Manipulation. The Company has not taken and will not take, directly or
indirectly, any action designed to or that could be reasonably expected to cause
or result in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Debentures.
(ff) Related Party Transactions.
Except as described in the Disclosure Package and the Prospectus, no
relationship exists between or among the Company or any Subsidiary, on the one
hand, and the directors, officers, stockholders, customers or suppliers of the
Company and its Subsidiaries, on the other hand, that is required to be
described in the Disclosure Package and the Prospectus that is not so
described.
(gg) Internal Controls and Procedures.
The Company maintains (i) effective internal control over financial
reporting as defined in Rule 13a-15 under the Exchange Act, as amended, and (ii)
a system of internal accounting controls sufficient to provide reasonable
assurance that (A) transactions
are executed in accordance with management’s general or specific
11
(hh) No Material Weakness in Internal
Controls. Except as disclosed in the Disclosure Package and the
Prospectus, since the end of the Company’s most recent audited fiscal year,
there has been (i) no material weakness in the Company’s internal control over
financial reporting (whether or not remediated) and (ii) no significant changes
in the Company’s internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the Company’s internal
control over financial reporting.
(ii) Disclosure Controls. The
Company and its subsidiaries maintain an effective system of “disclosure
controls and procedures” (as defined in Rule 13a-15 under the Exchange Act) that
is designed to ensure that information required to be disclosed by the Company
in reports that it files or submits under the Exchange Act is recorded,
processed, summarized and reported within the time periods specified in the
Commission’s rules and forms, including controls and procedures designed to
ensure that such information is accumulated and communicated to the Company’s
management as appropriate to allow timely decisions regarding required
disclosure. The Company and its subsidiaries have carried out evaluations of the
effectiveness of their disclosure controls and procedures as required by Rule
13a-15 under the Exchange Act.
(jj) No Unlawful Contributions or Other
Payments. Neither the Company nor any of its Subsidiaries nor,
to the knowledge of the Company, any director, officer, employee or affiliate of
the Company or any of its Subsidiaries is aware of or has taken any action,
directly or indirectly, in furtherance of the Company’s business that would
result in a violation by such persons of the FCPA, including, without
limitation, making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise to
pay or authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the FCPA) or any foreign
political party or official thereof or any candidate for foreign political
office, in contravention of the FCPA, and the Company, its Subsidiaries and, to
the knowledge of the Company, its affiliates have conducted their businesses in
compliance with the FCPA.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder.
(kk)
No Conflict with Money
Laundering Laws. The operations of the Company and its Subsidiaries are
and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of
all applicable jurisdictions, the applicable rules and regulations thereunder
and any related or similar applicable rules, regulations or guidelines issued,
administered or enforced by any governmental agency (collectively, the “Money
Laundering Laws”) and no action, suit or proceeding by or before
any
12
(ll) No Conflict with OFAC Laws.
Neither the Company nor any of its subsidiaries nor, to the knowledge
of the Company, any director, officer, employee or affiliate of the Company or
any of its subsidiaries is currently the subject of any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Treasury
Department (“OFAC”); and the Company will not directly or indirectly use the
proceeds of the offering, or lend, contribute or otherwise make available such
proceeds, to any subsidiary, joint venture partner or other person or entity,
for the purpose of financing the activities of any person currently the subject
of any U.S. sanctions administered by OFAC.
(mm) Compliance with Environmental
Laws. Except as otherwise disclosed in the Disclosure Package and
the Prospectus, (i) neither the Company nor any of its Subsidiaries is in
violation of any federal, state, local or foreign law, regulation, order, permit
or other requirement relating to pollution or protection of human health or 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 emissions, discharges, releases or
threatened releases of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum and petroleum products
(collectively, “Materials of Environmental Concern”), or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Materials of Environment Concern (collectively,
“Environmental Laws”), which violation includes, but is not limited to,
noncompliance with any permits or other governmental authorizations required for
the operation of the business of the Company or its Subsidiaries under
applicable Environmental Laws, or noncompliance with the terms and conditions
thereof, nor has the Company or any of its Subsidiaries received any written
communication, whether from a governmental authority, citizens group, employee
or otherwise, that alleges that the Company or any of its Subsidiaries is in
violation of any Environmental Law, except as would not, individually or in the
aggregate, have a Material Adverse Effect; (ii) there is no claim, action or
cause of action filed with a court or governmental authority, no investigation
with respect to which the Company has received written notice, and no written
notice by any person or entity alleging potential liability for investigatory
costs, cleanup costs, governmental responses costs, natural resources damages,
property damages, personal injuries, attorneys’ fees or penalties arising out
of, based on or resulting from the presence, or release into the environment, of
any Material of Environmental Concern at any location owned, leased or operated
by the Company or any of its Subsidiaries, now or in the past (collectively,
“Environmental Claims”), pending or, to the best of the Company’s knowledge,
threatened against the Company or any of its Subsidiaries or any person or
entity whose liability for any Environmental Claim that the Company or any of
its Subsidiaries has retained or assumed either contractually or by operation of
law, except as would not, individually or in the aggregate, have a Material
Adverse Effect; (iii) to the Company’s knowledge, there are no past, present or
anticipated future actions, activities, circumstances, conditions, events or
incidents, including, without limitation, the release, emission, discharge,
presence or disposal of any Material of Environmental Concern, that reasonably
would be expected to result in a violation of any Environmental Law, require
expenditures to be incurred pursuant to any Environmental Law, or form the basis
of a potential Environmental Claim against the Company or any of
its
13
(nn) Periodic Review of Costs of
Environmental Compliance. In the ordinary course of its business, the
Company conducts a periodic review of the effect of Environmental Laws on the
business, operations and properties of the Company and its Subsidiaries, in the
course of which it identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating expenditures required
for clean-up, closure of properties or compliance with Environmental Laws or any
permit, license or approval, any related constraints on operating activities and
any potential liabilities to third parties). On the basis of such review and the
amount of its established reserves, the Company has reasonably concluded that
such associated costs and liabilities would not, individually or in the
aggregate, have a Material Adverse Effect.
(oo) ERISA Compliance. None of the
following events has occurred or exists: (i) a failure to fulfill the
obligations, if any, under the minimum funding standards of Section 302 of the
United States Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), and the regulations and published interpretations thereunder with
respect to a Plan, determined without regard to any waiver of such obligations
or extension of any amortization period; (ii) an audit or investigation by the
Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit
Guaranty Corporation or any other federal or state governmental agency or any
foreign regulatory agency with respect to the employment or compensation of
employees by the Company or any of its subsidiaries that could have a Material
Adverse Effect; (iii) any breach of any contractual obligation, or any violation
of law or applicable qualification standards, with respect to the employment or
compensation of employees by the Company or any of its subsidiaries that could
have a Material Adverse Effect. None of the following events has occurred or is
reasonably likely to occur: (i) a material increase in the aggregate amount of
contributions required to be made to all Plans in the current fiscal year of the
Company and its subsidiaries compared to the amount of such contributions made
in the Company and its subsidiaries’ most recently completed fiscal year; (ii) a
material increase in the Company and its subsidiaries’ “accumulated
post-retirement benefit obligations” (within the meaning of Statement of
Financial Accounting Standards 106) compared to the amount of such obligations
in the Company and its subsidiaries’ most recently completed fiscal year; (iii)
any event or condition giving rise to a liability under Title IV of ERISA that
could have a Material Adverse Effect; or (iv) the
filing of a claim by one or more employees or former employees of the Company or
any of its subsidiaries related to its or their employment that could have a
Material Adverse Effect. For purposes of this paragraph, the term “Plan” means a
plan (within the meaning of Section 3(3) of ERISA) subject to Title IV of ERISA
with respect to which the Company or any of its subsidiaries may have any
liability.
(pp) Brokers. There is no broker,
finder or other party that is entitled to receive from the Company any
brokerage or finder’s fee or other similar payment as a result of any
transactions contemplated by this Agreement.
14
(rr) Subsidiaries. The
subsidiaries listed on Annex A attached hereto are the only significant
subsidiaries of the Company as defined by Rule 1-02 of Regulation
S-X.
(ss) Statistical and Market Related Data.
Nothing has come to the attention of the Company that has caused
the Company to believe that the statistical and market-related data included in
the Disclosure Package and the Prospectus is not based on or derived from
sources that are reliable and accurate in all material respects.
Any
certificate signed by an officer of the Company and delivered to the
Representatives or to counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company to each Underwriter as to the matters
set forth therein.
The
Company acknowledges that in accordance with the requirements of the USA Patriot
Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001), the
Underwriters are required to obtain, verify and record information that
identifies their respective clients, including the Company, which information
may include the name and address of their respective clients, as well as other
information that will allow the underwriters to properly identify their
respective clients.
Section
2. Purchase, Sale and Delivery of the
Debentures.
(a) The Firm Debentures. The
Company agrees to issue and sell to the several Underwriters the Firm
Debentures upon the terms herein set forth. On the basis of the representations,
warranties and agreements herein contained, and upon the terms but subject to
the conditions herein set forth, the Underwriters agree, severally and not
jointly, to purchase from the Company the respective aggregate principal amount
of Firm Debentures set forth opposite their names on Schedule A. The purchase
price per Firm Debenture to be paid by the several Underwriters to the Company
shall be 97.00% of the aggregate principal amount thereof.
(b) The Closing Date. Delivery of
the Firm Debentures to be purchased by the Underwriters and
payment therefor shall be made at the offices of Shearman & Sterling LLP,
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (or such other place as may be agreed to by the
Company and the Representatives) at 9:00 a.m., New York time, on June 10, 2009,
or such other time and date as may be agreed to by the Company and the
Representatives (the time and date of such closing are called the “Closing
Date”).
(c) The Optional Debentures; any
Subsequent Closing Date. In addition, on the basis of the representations,
warranties and agreements herein contained, and upon the terms but subject to
the conditions herein set forth, the Company hereby grants an option to the
several Underwriters to purchase, severally and not jointly, up to an additional
$30,000,000 aggregate principal amount of Optional Debentures from the Company
at the same price as the purchase price per Firm Debenture to be paid by the
Underwriters for the Firm Debentures and for the sole
15
(d) Public Offering of the
Debentures. The Representatives hereby advise the Company that the
Underwriters intend to offer for sale to the public, as described in the
Prospectus, their respective portions of the Debentures as soon after this
Agreement has been executed and the Registration Statement has been declared
effective as the Representatives, in their sole judgment, has determined is
advisable and practicable.
(e) Payment for the Debentures.
Payment for the Debentures shall be made at the Closing Date (and, if
applicable, at any Subsequent Closing Date) by wire transfer of immediately
available funds to the order of the Company.
It is
understood that the Representatives have been authorized, for their own account
and the accounts of the several Underwriters, to accept delivery of and receipt
for, and make payment of the purchase price for, the Firm Debentures and any
Optional Debentures the Underwriters have agreed to purchase. The
Representatives, individually and not as the Representatives of the
Underwriters, may (but shall not be obligated to) make payment for any
Debentures to be purchased by any Underwriter whose funds shall not have been
received by the Representatives by the Closing Date or any Subsequent Closing
Date, as the case may be, for the account of such Underwriter, but any such
payment shall not relieve such Underwriter from any of its obligations under
this Agreement.
(f) Delivery of the Debentures.
The Company shall deliver, or cause to be delivered, to the Representatives for
the accounts of the several Underwriters the Firm Debentures at the Closing
Date, against the irrevocable release of a wire transfer of immediately
available funds for the amount of the purchase price therefor. The Company shall
also deliver, or cause to be delivered, to the Representatives for the accounts
of the several Underwriters, the Optional Debentures the Underwriters have
agreed to purchase at the Closing Date or any Subsequent Closing Date, as the
case may be, against the irrevocable release of a wire transfer of
16
(g) Delivery of Prospectus to the
Underwriters. Not later than 3:00 p.m. on the first business day in New
York City following the date of this Agreement, the Company shall deliver or
cause to be delivered, copies of the Prospectus in such quantities and at such
places as the Representatives shall reasonably request.
Section
3. Covenants of the
Company.
The
Company covenants and agrees with each Underwriter as follows:
(a) Representative’s Review of Proposed
Amendments and Supplements. During the period beginning on the
Applicable Time and ending on the later of the Closing Date or such date, as in
the opinion of counsel for the Underwriters, the Prospectus is no longer
required by law to be delivered in connection with sales by an Underwriter or
dealer, including in circumstances where such requirement may be satisfied
pursuant to Rule 172 under the Securities Act (the “Prospectus Delivery
Period”), prior to amending or supplementing the Registration Statement, the
Disclosure Package or the Prospectus subject to Section 3(e), the Company shall
furnish to the Representatives for review a copy of each such proposed amendment
or supplement, and the Company shall not file or use any such proposed amendment
or supplement to which the Representatives reasonably object.
(b) Securities Act Compliance.
After the date of this Agreement, the Company shall promptly advise the
Representatives in writing (i) when the Registration Statement, if not effective
at the Execution Time, shall have become effective, (ii) of the receipt of any
comments of, or requests for additional or supplemental information from, the
Commission, (iii) of the time and date of any filing of any post-effective
amendment to the Registration Statement or any amendment or supplement to any
preliminary prospectus or the Prospectus, (iv) of the time and date that any
post-effective amendment to the Registration Statement becomes effective and
(v) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order or notice preventing or suspending the
use of the Registration Statement, any preliminary prospectus or the Prospectus,
or of any proceedings to remove, suspend or terminate from listing or quotation
the Common Stock from any securities exchange upon which it is listed for
trading or included or designated for quotation, or of the threatening or
initiation of any proceedings for any of such purposes. The Company shall use
its best efforts to prevent the issuance of any such stop order or notice of
prevention or suspension of such use. If the Commission shall enter any such
stop order or issue any such notice at any time, the Company will use its best
efforts to obtain the lifting or reversal of such order or notice at the
earliest possible moment, or, subject to Section 3(a), will file an amendment to
the Registration Statement or will file a new registration statement and use its
best efforts to have such amendment or new registration statement declared
effective as soon as practicable. Additionally, the Company agrees that it shall
comply with the provisions of Rules 424(b), 430B and 433, as applicable, under
the Securities Act, including with respect to the timely filing of
17
(c) Exchange Act Compliance.
During the Prospectus Delivery Period, the Company will file all documents
required to be filed with the Commission pursuant to Sections 13, 14 or
15 of the
Exchange Act in the manner and within the time periods required by the Exchange
Act.
(d) Amendments and Supplements to the
Registration Statement, Disclosure Package and Prospectus and Other Securities
Act Matters. If, during the Prospectus Delivery Period, any event or development
shall occur or condition exist as a result of which the Disclosure Package or
the Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein in the light of the circumstances under
which they were made or then prevailing, as the case may be, not misleading, or
if it shall be necessary to amend or supplement the Disclosure Package or the
Prospectus, or to file under the Exchange Act any document incorporated by
reference in the Disclosure Package or the Prospectus, in order to make the
statements therein, in the light of the circumstances under which they were made
or then prevailing, as the case may be, not misleading, or if in the opinion of
the Representatives it is otherwise necessary or advisable to amend or
supplement the Registration Statement, the Disclosure Package or the Prospectus,
or to file under the Exchange Act any document incorporated by reference in the
Disclosure Package or the Prospectus, or to file a new registration statement
containing the Prospectus, in order to comply with law, including in connection
with the delivery of the Prospectus, the Company agrees to (i) notify the
Representatives of any such event or condition and (ii) promptly prepare
(subject to Sections 3(a) and 3(f) hereof), file with the Commission (and use
its best efforts to have any amendment to the Registration Statement or any new
registration statement to be declared effective) and furnish at its own expense
to the Underwriters and to such dealers as the Representatives may designate,
amendments or supplements to the Registration Statement, the Disclosure Package
or the Prospectus, or any new registration statement, necessary in order to make
the statements in the Disclosure Package or the Prospectus as so amended or
supplemented, in the light of the circumstances under which they were made or
then prevailing, as the case may be, not misleading or so that the Registration
Statement, the Disclosure Package or the Prospectus, as amended or supplemented,
will comply with law.
(e) Final Term Sheet. The Company
will prepare a final term sheet, containing solely a description of final
terms of the Debentures and the offering thereof, in the form approved by the
Representatives and attached as Schedule B hereto (the “Final Term Sheet”) and
will file such Final Term Sheet pursuant to Rule 433(d) within the time required
by such rule.
(f) Permitted Free Writing
Prospectuses. The Company represents that it has not made, and agrees that,
unless it obtains the prior written consent of the Representatives, it will not
make, any offer relating to the Debentures that constitutes or would constitute
an Issuer Free Writing Prospectus or that otherwise constitutes or would
constitute a “free writing prospectus” (as defined in Rule 405 under the
Securities Act) or a portion thereof required to be filed by the Company with
the Commission or retained by the Company under Rule 433 under the Securities
Act; provided that the prior written consent of the Representatives hereto shall
be deemed to have been given in respect of the Final Term Sheet; and provided
further that the Underwriters
18
are
authorized to use the information contained in the pricing term sheet prepared
and filed pursuant to Section 5(b) hereof relating to the final terms of the
Debentures in communications conveying information relating to the offering to
investors. Any such free writing prospectus consented to by the Representatives
is hereinafter referred to as a “Permitted Free Writing Prospectus”. The Company
agrees that (i) it has treated and will treat, as the case may be, each
Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii)
has complied and will comply, as the case may be, with the requirements of Rules
164 and 433 under the Securities Act applicable to any Permitted Free Writing
Prospectus, including in respect of timely filing with the Commission, legending
and record keeping.
(g) Copies of any Amendments and
Supplements to the Prospectus. The Company agrees to furnish the
Representatives, without charge, during the Prospectus Delivery Period, as many
copies of each preliminary prospectus, the Prospectus and any amendments and
supplements thereto (including any documents incorporated or deemed incorporated
by reference therein) and the Disclosure Package as the Representatives may
request.
(h) Copies of the Registration
Statement. The Company will furnish to the Representatives and
counsel for the Underwriters signed copies of the Registration Statement
(including exhibits thereto).
(i) Blue Sky Compliance. The
Company shall cooperate with the Representatives and counsel for the
Underwriters to qualify or register the Debentures for sale under (or obtain
exemptions from the application of) the state securities or blue sky laws or
Canadian provincial securities laws or other foreign laws of those jurisdictions
reasonably designated by the Representatives, shall comply with such laws and
shall continue such qualifications, registrations and exemptions in effect so
long as required for the distribution of the Debentures. Notwithstanding the
foregoing, the Company shall not be required to qualify as a foreign corporation
or to take any action that would subject it to general service of process in any
such jurisdiction where it is not presently qualified or where it would be
subject to taxation as a foreign corporation, other than those arising out of
the offering or sale of the Debentures in any jurisdiction where it is not now
so subject. The Company will advise the Representatives promptly of the
suspension of the qualification or registration of (or any such exemption
relating to) the Debentures for offering, sale or trading in any jurisdiction or
any initiation or threat of any proceeding for any such purpose, and in the
event of the issuance of any order suspending such qualification, registration
or exemption, the Company shall use its best efforts to obtain the withdrawal
thereof promptly.
(j) Use of Proceeds. The Company
shall apply the net proceeds from the sale of the Debentures sold by it
in the manner described under the caption “Use of Proceeds” in the Disclosure
Package and the Prospectus.
(k) Transfer Agent. The Company
shall engage and maintain, at its expense, a registrar and transfer
agent for the Common Stock.
(l) Earnings Statement. As soon
as practicable, the Company will make generally available to its
security holders and to the Representatives an earnings statement (which need
not
19
(m) Periodic Reporting
Obligations. During the Prospectus Delivery Period the Company shall file, on
a timely basis, with the Commission and the New York Stock Exchange all reports
and documents required to be filed under the Exchange Act. Additionally, the
Company shall report the use of proceeds from the issuance of the Shares as may
be required under Rule 463 under the Securities Act.
(n) Agreement Not to Offer or Sell
Additional Securities. During the period commencing on the date
hereof and ending on the 90th day
following the date of the Prospectus, the Company will not, without the prior
written consent of the Representatives (which consent may be withheld at the
sole discretion of the Representatives ), directly or indirectly, sell, offer,
contract or grant any option to sell, pledge, transfer or establish an open “put
equivalent position” or liquidate or decrease a “call equivalent position”
within the meaning of Rule 16a- 1(h) under the Exchange Act, or otherwise
dispose of or transfer (or enter into any transaction that is designed to, or
might reasonably be expected to, result in the disposition of), or announce the
offering of, or file any registration statement under the Securities Act in
respect of, any shares of Common Stock, options or warrants to acquire shares of
the Common Stock or securities exchangeable or exercisable for or convertible
into shares of Common Stock (other than as contemplated by this Agreement with
respect to the Debentures and the underwriting agreement, dated June 4, 2009
between the Company and the underwriters named therein relating to the offering
of Offered Shares) provided, however, that the Company may issue shares of its
Common Stock or options to purchase its Common Stock, or Common Stock upon
exercise of options, pursuant to any stock option, stock bonus or other stock
plan or arrangement described in the Prospectus. Notwithstanding the foregoing,
if (x) during the last 17 days of the 90-day restricted period the Company
issues an earnings release or material news or a material event relating to the
Company occurs, or (y) prior to the expiration of the 90-day restricted period,
the Company announces that it will release earnings results during the 16-day
period beginning on the last day of the 90-day period, the restrictions imposed
in this clause shall continue to apply until the expiration of the 18-day period
beginning on the date of the issuance of the earnings release or the occurrence
of the material news or material event. The Company will provide the
Representatives and any co-managers and each individual subject to the
restricted period pursuant to the lockup letters described in Section 5(h) with
prior notice of any such announcement that gives rise to an extension of the
restricted period.
(o) Compliance with ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act. The Company will comply with all applicable securities
and other laws, rules and regulations, including, without limitation, the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, and use its best efforts to cause the Company’s directors
and officers, in their capacities as such, to comply with such laws, rules and
regulations, including, without limitation, the provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act.
(p) Future Reports to
Stockholders. To furnish to its stockholders as soon as practicable after the
end of each fiscal year an annual report (including a balance sheet and
statements of income, stockholders’ equity and cash flows of the Company and its
consolidated Subsidiaries certified by independent public accountants) and, as
soon as practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending
20
(q) Future Reports to the
Representatives. During the period of two years after the Closing Date, the
Company will furnish to the Representatives at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, or make available via ▇▇▇▇▇, as soon as
they are available, copies of all reports or other communications furnished to
holders of the Common Stock and copies of any reports and financial statements
furnished to or filed with the Commission or any national securities exchange or
automatic quotation system.
(r) Investment Limitation. The
Company shall not invest or otherwise use the proceeds received by
the Company from its sale of the Debentures in such a manner as would require
the Company or any of its Subsidiaries to register as an investment company
under the Investment Company Act.
(s) No Manipulation of Price. The
Company will not take, directly or indirectly, any action designed to
cause or result in, or that has constituted or could reasonably be expected to
constitute, under the Exchange Act or otherwise, the stabilization or
manipulation of the price of any securities of the Company to facilitate the
sale or resale of the Debentures.
(t) Listing of Conversion Shares.
The Company will use its commercially reasonable efforts to have the
Conversion Shares approved by the New York Stock Exchange, subject only to
official notice of issuance.
(u) DTC. The Company will
cooperate with the Representatives and use its best efforts to permit the
Debentures to be eligible for clearance and settlement through The Depository
Trust Company.
(v) Available Conversion Shares.
The Company will reserve and keep available at all times, free of
preemptive rights, the full number of Conversion Shares.
(w) Conversion Price. Between the
date hereof and the Closing Date, the Company will not do or
authorize any act or thing that would result in an adjustment of the conversion
price.
Section
4. Payment of Expenses.
The
Company agrees to pay all costs, fees and expenses incurred in connection with
the performance of its obligations hereunder and in connection with the
transactions contemplated hereby, including without limitation (i) all expenses
incident to the issuance and delivery of the Debentures (including all printing
and engraving costs), (ii) all fees and expenses of the Trustee under the
Indenture, (iii) all necessary issue, transfer and other stamp taxes in
connection with the issuance and sale of the Debentures to the Underwriters,
(iv) all fees and expenses of the Company’s counsel, independent public or
certified public accountants and other advisors, (v) all costs and expenses
incurred in connection with the preparation, printing, filing, shipping and
distribution of the Registration Statement (including financial statements,
exhibits, schedules, consents and certificates of experts), each Issuer Free
Writing Prospectus, each Permitted Free
21
Writing
Prospectus, each preliminary prospectus and the Prospectus, and all amendments
and supplements thereto, and this Agreement, (vi) all filing fees, reasonable
attorneys’ fees and expenses incurred by the Company or the Underwriters in
connection with qualifying or registering (or obtaining exemptions from the
qualification or registration of) all or any part of the Debentures for offer
and sale under the state securities or blue sky laws or the provincial
securities laws of Canada, and, if requested by the Representatives, preparing
and printing a “Blue Sky Survey” or memorandum, and any supplements thereto,
advising the Underwriters of such qualifications, registrations and exemptions,
(vii) the filing fees incident to, and the reasonable fees and expenses of
counsel for the Underwriters in connection with, FINRA’s review and approval, if
required, of the Underwriters’ participation in the offering and distribution of
the Debentures, (viii) the fees and expenses associated with listing of the
Conversion Shares on the New York Stock Exchange, (ix) all of the Company’s
transportation and other expenses incurred in connection with presentations to
prospective purchasers of the Debentures, except that the Company and the
Underwriters will each pay 50% of the cost of privately chartered airplanes used
for such purposes and (x) all other fees, costs and expenses referred to in Item
14 of Part II of the Registration Statement. Except as provided in this Section
4, Section 6, Section 8 and Section 9 hereof, the Underwriters shall pay their
own expenses, including the fees and disbursements of their
counsel.
Section
5. Conditions of the Obligations of the
Underwriters.
The
obligations of the several Underwriters to purchase and pay for the Debentures
as provided herein on the Closing Date and, with respect to the Optional
Debentures, any Subsequent Closing Date, shall be subject to the accuracy of the
representations and warranties on the part of the Company set forth in Section 1
hereof as of the date hereof and as of the Closing Date as though then made and,
with respect to the Optional Debentures, as of any Subsequent Closing Date as
though then made, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the timely performance by the
Company of its covenants and other obligations hereunder, and to each of the
following additional conditions:
(a) Accountants’ Comfort Letter.
On the date hereof, the Representatives shall have received from each of
(i) Deloitte & Touche LLP and Ernst & Young LLP, independent public
accountants for the Company, a letter dated the date hereof addressed to the
Underwriters and in form and substance satisfactory to the Representatives and
(ii) Deloitte & Touche LLP, independent public accountants for Giant
Industries, Inc., a letter dated the date hereof addressed to the Underwriters
and in form and substance satisfactory to the Representatives.
(b) Compliance with Registration
Requirements; No Stop Order; No Objection from FINRA. For the period from
and after effectiveness of this Agreement and prior to the Closing Date and, with respect
to the Optional Debentures, any Subsequent Closing Date:
(i) the
Company shall have filed the Prospectus with the Commission (including the
information required by Rule 430B under the Securities Act) in the manner and
within the time period required by Rule 424(b) under the Securities Act; or the
Company shall have filed a post- effective amendment to the Registration
Statement containing the information required by such
22
(ii) all
material required to be filed by the Company pursuant to Rule 433(d) under the
Securities Act, including the Final Term Sheet, shall have been filed with the
Commission within the applicable time periods prescribed for such filings under
such Rule 433 under the Securities Act;
(iii) no stop
order suspending the effectiveness of the Registration Statement, or any
post-effective amendment to the Registration Statement, shall be in effect and
no proceedings for such purpose or pursuant to Section 8A of the Securities Act
against the Company or related to the offering shall have been instituted or
threatened by the Commission; and
(iv) FINRA
shall have raised no objection to the fairness and reasonableness of the
underwriting terms and arrangements.
(c) No Material Adverse Change or
Ratings Agency Change. For the period from and after the date of this
Agreement, or the respective dates as of which information is given in the
Prospectus and the Disclosure Package, and prior to the Closing Date and, with
respect to the Optional Debentures, any Subsequent Closing Date:
(i) in the
judgment of the Representatives there shall not have occurred any Material
Adverse Change;
(ii) there
shall not have been any change or decrease specified in the letter or letters
referred to in paragraph (a) of this Section 5 which is, in the sole judgment of
the Representatives, so material and adverse as to make it impracticable or
inadvisable to proceed with the offering, sale or delivery of the Debentures on
the Closing Date or the Subsequent Closing Date, as applicable, on the terms and
in the manner contemplated by this Agreement and the Prospectus;
and
(iii) there
shall not have occurred any downgrading, nor shall any notice have been given of
any intended or potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in the rating
accorded any debt securities of the Company or any of its Subsidiaries by any
“nationally recognized statistical rating organization” as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act.
(d) Opinion of Counsel for the
Company. On the Closing Date and any Subsequent Closing Date, the
Representatives shall have received the favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Senior Vice President — Legal, General Counsel and Secretary, and ▇▇▇▇▇ ▇▇▇▇
& ▇▇▇▇▇▇▇▇, counsel for the Company, dated as of such Closing Date or
Subsequent Closing Date, the forms of which are attached as Exhibit A-1 and A-2,
respectively.
(e) Opinion of Counsel for the
Underwriters. On the Closing Date and any Subsequent Closing
Date, the Representatives shall have received the favorable opinion of ▇▇▇▇▇▇▇▇
& Sterling LLP, counsel for the Underwriters, dated as of such Closing Date
or Subsequent Closing Date, in form and substance satisfactory to, and addressed
to, the Representatives for the benefit of all of the Underwriters, with respect
to the issuance and sale of
23
(f) Officers’ Certificate. On
each of the Closing Date and any Subsequent Closing Date, the Representatives
shall have received a written certificate executed by the Chairman of the Board,
Chief Executive Officer or President of the Company and the Chief Financial
Officer or Chief Accounting Officer of the Company, dated as of such Closing
Date or Subsequent Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the Prospectus
and any amendment or supplement thereto, any Issuer Free Writing Prospectus, any
Permitted Free Writing Prospectus and any amendment or supplement thereto and
this Agreement, to the effect set forth in subsections (b) and (c)(iii) of this
Section 5, and further to the effect that:
(i) for the
period from and after the date of this Agreement and prior to such Closing Date
or Subsequent Closing Date there has not occurred any Material Adverse
Change;
(ii) the
representations and warranties of the Company set forth in Section 1 of this
Agreement are true and correct on and as of such Closing Date or Subsequent
Closing Date with the same force and effect as though expressly made on and as
of such Closing Date or Subsequent Closing Date; and
(iii) the
Company has complied with all the agreements hereunder and satisfied all the
conditions on its part to be performed or satisfied hereunder at or prior to
such Closing Date or Subsequent Closing Date.
(g) Bring-down Comfort Letter. On
the Closing Date and any Subsequent Closing Date, the
Representatives shall have received from each of (i) Deloitte & Touche LLP
and Ernst & Young
LLP, independent public accountants for the Company, and (ii) Deloitte &
Touche LLP, independent public accounts for Giant Industries, Inc. a letter
dated such date, in form and substance satisfactory to the Representatives, to
the effect that they reaffirm the statements made in the respective letter
furnished by them pursuant to subsection (a) of this Section 5, except that the
specified date referred to therein for the carrying out of procedures shall be
no more than three business days prior to such Closing Date or Subsequent
Closing Date.
(h) Lock-Up Agreement from Certain
Securityholders of the Company. On or prior to the date hereof, the
Company shall have furnished to the Representatives an agreement in the form of
Exhibit B
hereto from the directors, officers and shareholders of the Company named in
Schedule C, and
such agreement shall be in full force and effect on the Closing Date and
any Subsequent
Closing Date.
(i) Listing Approval. The Company
shall have caused the Conversion Shares to be approved for listing,
subject to notice of issuance, on the New York Stock Exchange, and satisfactory
evidence of such actions shall have been provided to the
Representatives.
(j) Execution of Indenture. The
Company shall have executed and delivered the Indenture and the
Underwriters shall have received copies thereof. Each condition to the
closing
24
(k) Additional Documents. On or
before the Closing Date and any Subsequent Closing Date, the Representatives and
counsel for the Underwriters shall have received such information, documents and
opinions as they may reasonably require for the purposes of enabling them to
pass upon the issuance and sale of the Debentures as contemplated herein, or in
order to evidence the accuracy of any of the representations and warranties, or
the satisfaction of any of the conditions or agreements, herein
contained.
If any
condition specified in this Section 5 is not satisfied when and as required to
be satisfied, this Agreement may be terminated by the Representatives by notice
to the Company at any time on or prior to the Closing Date and, with respect to
the Optional Debentures, at any time prior to the applicable Subsequent Closing
Date, which termination shall be without liability on the part of any party to
any other party, except that Section 4, Section 6, Section 8, Section 9 and
Section 14 shall at all times be effective and shall survive such
termination.
Section
6. Reimbursement of Underwriters’
Expenses.
If this
Agreement is terminated pursuant to Section 5 or Section 11 or if the sale to
the Underwriters of the Debentures on the Closing Date or any Subsequent Closing
Date is not consummated because of any refusal, inability or failure on the part
of the Company to perform any agreement herein or to comply with any provision
hereof, the Company agrees to reimburse the Representatives and the other
Underwriters (or such Underwriters as have terminated this Agreement with
respect to themselves), severally, upon demand for all out-of-pocket expenses
that shall have been reasonably incurred by the Representatives and the
Underwriters in connection with the proposed purchase and the offering and sale
of the Debentures, including but not limited to reasonable fees and
disbursements of counsel, printing expenses, travel expenses, postage, facsimile
and telephone charges.
Section
7. Effectiveness of this
Agreement.
This
Agreement shall become effective upon the execution of this Agreement by the
parties hereto.
Section
8. Indemnification.
(a) Indemnification of the
Underwriters. The Company agrees to indemnify and hold harmless each
Underwriter, its directors, officers, employees and agents, and each person, if
any, who controls any Underwriter within the meaning of the Securities Act or
the Exchange Act against any loss, claim, damage, liability or expense, as
incurred, to which such Underwriter, director, officer, employee, agent or such
controlling person may become subject, insofar as such loss, claim, damage,
liability or expense (or actions in respect thereof as contemplated below)
arises out of or is based (i) upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, or any
amendment thereto, including any information deemed to be a part thereof
pursuant to Rule 430A, Rule 430B or Rule 430C under
25
(b) Indemnification of the Company, its
Directors and Officers. Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, each of its directors,
managers, officers and employees and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act, from and
against any loss, claim, damage, liability or expense, as incurred, to which the
Company, or any such director, manager, officer, employee or controlling person
may become subject, insofar as such loss, claim, damage, liability or expense
(or actions in respect thereof as contemplated below) arises out of or is based
upon any untrue or alleged untrue statement of a material fact contained in the
Registration Statement, any Issuer Free Writing Prospectus, any Permitted Free
Writing Prospectus, any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) or arises out of or is based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, and only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in the Registration
Statement, any Issuer Free Writing Prospectus, any Permitted Free Writing
Prospectus, any preliminary 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 Representatives expressly for use therein; and
to reimburse the Company, or any such director, manager, officer, employee or
controlling person for any legal and other expense reasonably incurred by the
Company, or any such director, manager, officer, employee or controlling person
in connection with investigating, defending, settling, compromising or paying
any such loss, claim, damage, liability, expense or action. The Company hereby
acknowledges that the only information that the Underwriters have furnished to
the Company expressly for use in the Registration Statement, any Issuer Free
Writing Prospectus, any Permitted Free Writing Prospectus, any preliminary
prospectus or the Prospectus
26
(c) Notifications and Other
Indemnification Procedures. Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party under this Section 8, notify the indemnifying party in writing of the
commencement thereof, but the failure to so notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. In case any such action is brought
against any indemnified party and such indemnified party seeks or intends to
seek indemnity from an indemnifying party, the indemnifying party will be
entitled to participate in, and, to the extent that it shall elect, jointly with
all other indemnifying parties similarly notified, by written notice delivered
to the indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party; provided, however, if the defendants in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that a conflict may
arise between the positions of the indemnifying party and the indemnified party
in conducting the defense of any such action or that there may be legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of such indemnifying party’s election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (other than a reasonably necessary local counsel), reasonably
approved by the indemnifying party (or by the Representatives in the case of
Section 8(b)), representing the indemnified parties who are parties to such
action) or (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action, in each of which
cases the fees and expenses of counsel shall be at the expense of the
indemnifying party.
(d) Settlements. The indemnifying
party under this Section 8 shall not be liable for any settlement of any
proceeding effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with such consent or if there is a final,
non-appealable judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party against any loss, claim, damage, liability or
expense by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested
27
(e) Indemnification of the QIU.
Without limitation and in addition to its obligation under the other subsections
of this Section 8, the Company agrees to indemnify and hold harmless the QIU,
its officers and employees and each person, if any, who controls the QIU within
the meaning of the Securities Act or the Exchange Act from and against any loss,
claim, damage, liabilities or expense, as incurred, arising out of or based upon
the QIU’s acting as a “qualified independent underwriter” (within the meaning of
NASD Conduct Rule 2720) in connection with the offering contemplated by this
Agreement, and agrees to reimburse each such indemnified person for any legal or
other expense reasonably incurred by them in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or expense results from the gross negligence or willful misconduct of
the QIU.
Section
9. Contribution.
If the
indemnification provided for in Section 8 is for any reason unavailable to or
otherwise insufficient to hold harmless an indemnified party in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or payable by
such indemnified party, as incurred, as a result of any losses, claims, damages,
liabilities or expenses referred to therein (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
Debentures pursuant to this Agreement or (ii) if the allocation provided by
clause (i) above 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 the
Underwriters, on the other hand, in connection with the statements or omissions
or inaccuracies in the representations and warranties herein which resulted in
such losses, claims, damages, liabilities 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 Debentures pursuant to this Agreement shall be deemed
to be in the same respective proportions as the total net proceeds from the
offering of the Debentures pursuant to this Agreement (before deducting
expenses) received by the Company, and the total underwriting discount received
by
28
The
amount paid or payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to include, subject
to the limitations set forth in Section 8(c), any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim. The provisions set forth in Section 8(d) with
respect to notice of commencement of any action shall apply if a claim for
contribution is to be made under this Section 9; provided, however, that no
additional notice shall be required with respect to any action for which notice
has been given under Section 8(d) for purposes of indemnification.
The
Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in this Section 9.
Notwithstanding
the provisions of this Section 9, no Underwriter shall be required to contribute
any amount in excess of the underwriting discount or commission received by such
Underwriter in connection with the Debentures underwritten by it and distributed
to the public. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations to contribute pursuant to this
Section 9 are several, and not joint, in proportion to their respective
underwriting commitments as set forth opposite their names in Schedule A. For
purposes of this Section 9, each director, officer, employee and agent of an
Underwriter and each person, if any, who controls an Underwriter within the
meaning of the Securities Act or the Exchange Act shall have the same rights to
contribution as such Underwriter, and each director, manager, officer and
employee of the Company and each person, if any, who controls the Company within
the meaning of the Securities Act or the Exchange Act shall have the same rights
to contribution as the Company.
Section
10. Default of One or More of the Several
Underwriters.
If, on
the Closing Date or a Subsequent Closing Date, as the case may be, any one or
more of the several Underwriters shall fail or refuse to purchase Debentures
that it or they have agreed to purchase hereunder on such date, and the
aggregate principal amount of Debentures which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase does not exceed 10% of the
aggregate principal amount of the Debentures to be purchased on such date, the
other Underwriters shall be obligated, severally, in the proportions that the
aggregate principal amount of Firm Debentures set forth opposite their
respective names on Schedule
A
29
As used
in this Agreement, the term “Underwriter” shall be deemed to include any person
substituted for a defaulting Underwriter under this Section 10. Any action taken
under this Section 10 shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this
Agreement.
Section
11. Termination of this Agreement.
Prior to
the Closing Date and, with respect to the Optional Shares, any Subsequent
Closing Date, this Agreement may be terminated by the Representatives by notice
given to the Company if at any time (i) trading or quotation in any of the
Company’s securities shall have been suspended or limited by the Commission or
by the New York Stock Exchange, or trading in securities generally on the New
York Stock Exchange shall have been suspended or limited, or minimum or maximum
prices shall have been generally established on any of such stock exchanges by
the Commission or FINRA; (ii) a general banking moratorium shall have been
declared by federal or New York authorities or a material disruption in
commercial banking or securities settlement or clearance services in the United
States has occurred; or (iii) there shall have occurred any outbreak or
escalation of national or international hostilities, or any change in the United
States or international financial markets, or any substantial change or
development involving a prospective substantial change in United States or
international political, financial or economic conditions, as in the judgment of
the Representatives is material and adverse and makes it impracticable or
inadvisable to market the Shares in the manner and on the terms described in the
Prospectus or to enforce contracts for the sale of securities. Any termination
pursuant to this Section 11 shall be without liability on the part of (a) the
Company to any Underwriter, except that the Company shall be obligated to
reimburse the reasonable expenses of the Representatives and the Underwriters
pursuant to Sections 4 and 6 hereof or (b) any Underwriter to the
Company.
30
The
Company acknowledges and agrees that: (i) the purchase and sale of the
Debentures pursuant to this Agreement, including the determination of the public
offering price of the Debentures and any related discounts and commissions, is
an arm’s-length commercial transaction between the Company, on the one hand, and
the several Underwriters, on the other hand, and the Company is capable of
evaluating and understanding and understands and accepts the terms, risks and
conditions of the transactions contemplated by this Agreement; (ii) in
connection with each transaction contemplated hereby and the process leading to
such transaction each Underwriter is and has been acting solely as a principal
and is not the financial advisor, agent or fiduciary of the Company or its
affiliates, stockholders, creditors or employees or any other party; (iii) no
Underwriter has assumed or will assume an advisory, agency or fiduciary
responsibility in favor of the Company with respect to any of the transactions
contemplated hereby or the process leading thereto (irrespective of whether such
Underwriter has advised or is currently advising the Company on other matters)
and no Underwriter has any obligation to the Company with respect to the
offering contemplated hereby except the obligations expressly set forth in this
Agreement; (iv) the several Underwriters and their respective affiliates may be
engaged in a broad range of transactions that involve interests that differ from
those of the Company and that the several Underwriters have no obligation to
disclose any of such interests by virtue of any advisory, agency or fiduciary
relationship; and (v) the Underwriters have not provided any legal, accounting,
regulatory or tax advice with respect to the offering contemplated hereby and
the Company has consulted its own legal, accounting, regulatory and tax advisors
to the extent it deemed appropriate.
This
Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the several Underwriters, or any of them, with
respect to the subject matter hereof. The Company hereby waives and releases, to
the fullest extent permitted by law, any claims that the Company may have
against the several Underwriters with respect to any breach or alleged breach of
agency or fiduciary duty.
Section
13. Representations and Indemnities to Survive
Delivery.
The
respective indemnities, agreements, representations, warranties and other
statements of the Company, of its officers and of the several Underwriters set
forth in or made pursuant to this Agreement (i) will remain operative and in
full force and effect, regardless of any (A) investigation, or statement as to
the results thereof, made by or on behalf of any Underwriter, the QIU, the
officers or employees of any Underwriter or QIU, or any person controlling the
Underwriter or the QIU, the Company, the officers or employees of the Company or
any person controlling the Company, as the case may be or (B) acceptance of the
Debentures and payment for them hereunder and (ii) will survive delivery of and
payment for the Debentures sold hereunder and any termination of this
Agreement.
Section
14. Notices.
All
communications hereunder shall be in writing and shall be mailed, hand delivered
or telecopied and confirmed to the parties hereto as follows:
31
▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
One
Bryant Park
New York,
NY 10036
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Attention: Syndicate
Department
and
▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ Floor
New York,
New York 10004
Attention:
Registration Department
with a
copy to:
▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
One
Bryant Park
New York,
NY 10036
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Attention: ECM
– Legal
If to the
Company:
▇▇▇ ▇.
▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇
El Paso,
Texas 79901
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇▇
Any party
hereto may change the address for receipt of communications by giving written
notice to the others.
Section
15. Successors and Assigns.
This
Agreement will inure to the benefit of and be binding upon the parties hereto,
including any substitute Underwriters pursuant to Section 10 hereof, and to the
benefit of (i) the Company, its directors, any person who controls the Company
within the meaning of the Securities Act or the Exchange Act and any officer of
the Company who signs the Registration Statement, (ii) the Underwriters, the
officers, directors, employees and agents of the Underwriters, and each person,
if any, who controls any Underwriter within the meaning of the Securities Act or
the Exchange Act, (iii) the QIU, the QIU’s officers, directors, employees and
agents, and each person, if any, who controls the QIU within the meaning of the
Securities Act or the Exchange Act, (iv) the respective successors and assigns
of any of the above, all as and to the extent provided in this Agreement, and no
other person shall acquire or have any right under or
32
Section
16. Partial Unenforceability.
The
invalidity or unenforceability of any Section, paragraph or provision of this
Agreement shall not affect the validity or enforceability of any other Section,
paragraph or provision hereof. If any Section, paragraph or provision of this
Agreement is for any reason determined to be invalid or unenforceable, there
shall be deemed to be made such minor changes (and only such minor changes) as
are necessary to make it valid and enforceable.
Section
17. Governing Law Provisions
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
Section
18. General Provisions.
This
Agreement constitutes the entire agreement of the parties to this Agreement and
supersedes all prior written or oral and all contemporaneous oral agreements,
understandings and negotiations with respect to the subject matter hereof. This
Agreement may be executed in two or more counterparts, each one of which shall
be an original, with the same effect as if the signatures thereto and hereto
were upon the same instrument. This Agreement may not be amended or modified
unless in writing by all of the parties hereto, and no condition herein (express
or implied) may be waived unless waived in writing by each party whom the
condition is meant to benefit. The Section headings herein are for the
convenience of the parties only and shall not affect the construction or
interpretation of this Agreement.
Each of
the parties hereto acknowledges that it is a sophisticated business person who
was adequately represented by counsel during negotiations regarding the
provisions hereof, including, without limitation, the indemnification provisions
of Section 8 and the contribution provisions of Section 9, and is fully informed
regarding said provisions. Each of the parties hereto further acknowledges that
the provisions of Sections 8 and 9 hereto fairly allocate the risks in light of
the ability of the parties to investigate the Company, its affairs and its
business in order to assure that adequate disclosure has been made in the
Registration Statement, any preliminary prospectus and the Prospectus (and any
amendments and supplements thereto), as required by the Securities Act and the
Exchange Act.
33
|
Very
truly yours,
|
|||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||
| Title: | Senior Vice President - Legal, General Counsel and Secretary | ||
The
foregoing Underwriting Agreement is hereby confirmed and accepted by the
Representatives as of the date first above written.
▇▇▇▇▇▇▇
LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇▇,
▇▇▇▇▇ & CO.
Acting as
Representatives of the
several
Underwriters named in
the
attached Schedule A.
By:
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||
|
Managing
Director
|
|||
By:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
| By: | /s/ ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. | ||
|
(▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co.)
|
|||
34