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EXHIBIT 1.1
SEAGULL ENERGY CORPORATION
(a Texas corporation)
Common Stock, Preferred Stock,
Depositary Shares, Debt Securities
and Warrants to Purchase Common Stock,
Preferred Stock, Depositary Shares or Debt Securities
UNDERWRITING AGREEMENT
September ___, 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Seagull Energy Corporation, a Texas corporation (the "Company"),
proposes to issue and sell (i) up to $300,000,100 aggregate initial public
offering price of its (a) shares of common stock, par value $0.10 per share
(the "Common Stock"), accompanied by rights to purchase Junior Participating
Preferred Stock (the "Rights"), (b) shares of preferred stock, par value $1.00
per share, in one or more series (the "Preferred Stock"), which may be issued
in the form of depositary shares evidenced by depositary receipts (the
"Depositary Shares"), (c) unsecured senior or senior subordinated debt
securities, in one or more series, consisting of notes, debentures or other
evidences of indebtedness (the "Debt Securities") as more fully described
below, or (d) warrants (the "Warrants") to purchase Common Stock, Preferred
Stock, Depositary Shares or Debt Securities, or any combination thereof, and
(ii) up to an additional $100,000,000 aggregate initial offering price of its
Debt Securities, in each case, from time to time, in or pursuant to one or more
offerings on terms to be determined at the time of sale.
The Preferred Stock will be issued in one or more series and each
series of Preferred Stock may vary, as applicable, as to the title, specific
number of shares, rank, stated value, liquidation preference, dividend rate or
rates (or method of calculation), dividend payment dates, redemption
provisions, sinking fund requirements, conversion provisions (and terms of the
related Underlying Securities (as defined below)) and any other variable terms
as set forth in the applicable certificate of designations (each, the
"Certificate of Designations") relating to such series of Preferred Stock. A
series of Preferred Stock may be represented by Depositary Shares that are
evidenced by depositary receipts (the "Depositary Receipts") issued pursuant to
a deposit agreement (each, a "Deposit Agreement") among the Company, the
depositary identified therein (the "Depositary") and the registered holders of
the Depositary Receipts issued thereunder.
The Debt Securities will be issued in one or more series as unsecured
senior indebtedness (the "Senior Debt Securities") under an indenture dated as
of ________, 1997 (the "Senior Indenture"), between the Company and The Bank of
New York, as trustee (the "Senior Trustee"), or as senior subordinated
indebtedness (the "Subordinated Debt Securities") under an indenture dated as
of ________, 1997 (the "Subordinated Indenture", and collectively with the
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Senior Indenture, the "Indentures", and each, an "Indenture"), between the
Company and The Bank of New York, as trustee (the "Subordinated Trustee", and
collectively with the Senior Trustee, the "Trustees", and each, a "Trustee").
Each series of Debt Securities may vary, as applicable, as to title, aggregate
principal amount, rank, interest rate or formula and timing of payments
thereof, stated maturity date, redemption and/or repayment provisions, sinking
fund requirements, conversion provisions (and terms of the related Underlying
Securities) and any other variable terms established by or pursuant to the
applicable Indenture.
Each issue of Warrants will be issued pursuant to a separate warrant
agreement (each, a "Warrant Agreement") between the Company and the warrant
agent identified therein (each, a "Warrant Agent"). The Warrants may vary, as
applicable, as to, among other terms, title, type, specific number, exercise
dates or periods, exercise price(s), expiration date(s) and terms of the
related Underlying Securities.
As used herein, "Securities" shall mean the Common Stock, Preferred
Stock, Depositary Shares, Senior Debt Securities, Subordinated Debt Securities,
Warrants, or any combination thereof, initially issuable by the Company, and
"Underlying Securities" shall mean the Common Stock, Preferred Stock,
Depositary Shares, Senior Debt Securities or Subordinated Debt Securities
issuable upon exercise of the Warrants, as applicable, or upon conversion of
the Preferred Stock, Depositary Shares, Senior Debt Securities or Subordinated
Debt Securities, as applicable.
Whenever the Company determines to make an offering of Securities
through ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
("▇▇▇▇▇▇▇ ▇▇▇▇▇"), or through an underwriting syndicate managed by ▇▇▇▇▇▇▇
▇▇▇▇▇, the Company will enter into an agreement (each, a "Terms Agreement")
providing for the sale of such Securities to, and the purchase and offering
thereof by, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and such other underwriters, if any, selected by
▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Underwriters", which term shall include ▇▇▇▇▇▇▇ ▇▇▇▇▇,
whether acting as sole Underwriter or as a member of an underwriting syndicate,
as well as any Underwriter substituted pursuant to Section 10 hereof).
Notwithstanding the foregoing, except as expressly provided in any Terms
Agreement, nothing in this Underwriting Agreement shall obligate the Company to
designate ▇▇▇▇▇▇▇ ▇▇▇▇▇ as an underwriter with respect to the offer and sale of
any of the Securities. The Terms Agreement relating to the offering of
Securities shall specify the number or aggregate principal amount, as the case
may be, of Securities to be initially issued (the "Initial Underwritten
Securities"), the name of each Underwriter participating in such offering
(subject to substitution as provided in Section 10 hereof) and the name of any
Underwriter other ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ acting as co-manager in connection with
such offering, the number or aggregate principal amount, as the case may be, of
Initial Underwritten Securities which each such Underwriter severally agrees to
purchase, whether such offering is on a fixed or variable price basis and, if
on a fixed price basis, the initial offering price, the price at which the
Initial Underwritten Securities are to be purchased by the Underwriters, the
form, time, date and place of delivery and payment of the Initial Underwritten
Securities and any other material variable terms of the Initial Underwritten
Securities, as well as the material variable terms of any related Underlying
Securities. In addition, if applicable, such Terms Agreement shall specify
whether the Company has agreed to grant to the Underwriters an option to
purchase additional Securities to cover over-allotments, if any, and the number
or aggregate principal amount, as the case may be, of Securities subject to
such option (the "Option Underwritten Securities"). As used herein, the term
"Underwritten Securities" shall include the Initial Underwritten Securities and
all or any portion of any Option Underwritten Securities. The Terms Agreement,
which shall be substantially in the form of Exhibit A hereto, may take the form
of an exchange of any standard form of written telecommunication between the
Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇, acting for itself and, if applicable, as
representative of any other Underwriters. Each offering of Underwritten
Securities through ▇▇▇▇▇▇▇ ▇▇▇▇▇ as sole Underwriter or through an underwriting
syndicate managed by ▇▇▇▇▇▇▇ ▇▇▇▇▇ will be governed by this Underwriting
Agreement, as supplemented by the applicable Terms Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") (i) a registration statement on Form S-3 (No. 33-65118), as
amended (the "First Registration Statement"), (ii) a registration statement on
Form S-3 (No. 33-64051) as amended (the "Second Registration Statement") and
(iii) a registration statement on Form S-3 (No. 333-34841) [and pre-effective
amendment[s] no[s]. __________ thereto] which acts as a post-effective
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amendment to each of the First Registration Statement and the Second
Registration Statement, and pursuant to Rule 429 includes a combined prospectus
for use with the securities covered by the First Registration Statement and the
Second Registration Statement (the "Third Registration Statement"), for the
registration of the Securities and the Underlying Securities under the
Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof
from time to time in accordance with Rule 415 of the rules and regulations of
the Commission under the 1933 Act (the "1933 Act Regulations"), and the Company
has filed such post-effective amendments thereto as may be required prior to
the execution of the applicable Terms Agreement. Such registration statements
(as so amended, if applicable) have been declared effective by the Commission
and each Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended (the "1939 Act"). The First Registration Statement, the
Second Registration Statement and the Third Registration Statement (as so
amended, if applicable), including the information, if any, deemed to be a part
thereof pursuant to Rule 430A(b) of the 1933 Act Regulations (the "Rule 430A
Information") or Rule 434(d) of the 1933 Act Regulations (the "Rule 434
Information"), are referred to herein as the "Registration Statements"; and the
final prospectus and the final prospectus supplement relating to the offering
of the Underwritten Securities, in the form first furnished to the Underwriters
by the Company for use in connection with the offering of the Underwritten
Securities, are collectively referred to herein as the "Prospectus"; provided,
however, that all references to the "Registration Statements" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), prior to the execution of the applicable Terms Agreement;
provided, further, that if the Company files a registration statement with the
Commission pursuant to Rule 462(b) of the 1933 Act Regulations (the "Rule 462
Registration Statement"), then, after such filing, all references to
"Registration Statements" shall also be deemed to include the Rule 462
Registration Statement; and provided, further, that if the Company elects to
rely upon Rule 434 of the 1933 Act Regulations, then all references to
"Prospectus" shall also be deemed to include the final or preliminary
prospectus and the applicable term sheet or abbreviated term sheet (the "Term
Sheet"), as the case may be, in the form first furnished to the Underwriters by
the Company in reliance upon Rule 434 of the 1933 Act Regulations, and all
references in this Underwriting Agreement to the date of the Prospectus shall
mean the date of the Term Sheet. A "preliminary prospectus" shall be deemed to
refer to any prospectus used before the registration statement became effective
and any prospectus that omitted, as applicable, the Rule 430A Information, the
Rule 434 Information or other information to be included upon pricing in a form
of prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations, that was used after such effectiveness and prior to the execution
and delivery of the applicable Terms Agreement. For purposes of this
Underwriting Agreement, all references to the Registration Statements,
Prospectus, Term Sheet or preliminary prospectus or to any amendment or
supplement to any of the foregoing shall be deemed to include any copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("▇▇▇▇▇").
All references in this Underwriting Agreement to financial statements
and schedules and other information which is "contained," "included" or
"stated" (or other references of like import) in the Registration Statements,
Prospectus or preliminary prospectus shall be deemed to mean and include all
such financial statements and schedules and other information which is
incorporated by reference in the Registration Statements, Prospectus or
preliminary prospectus, as the case may be; and all references in this
Underwriting Agreement to amendments or supplements to the Registration
Statements, Prospectus or preliminary prospectus shall be deemed to mean and
include the filing of any document under the 1934 Act which is incorporated by
reference in the Registration Statements, Prospectus or preliminary prospectus,
as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to ▇▇▇▇▇▇▇ ▇▇▇▇▇, as of the date hereof, and to each
Underwriter named in the applicable Terms Agreement, as of the date thereof, as
of the Closing Time (as defined below) and, if applicable, as of each Date of
Delivery (as defined below) (in each case, a "Representation Date"), as
follows:
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(1) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act. Each
of the Registration Statements and any Rule 462(b) Registration
Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statements or any
Rule 462(b) Registration Statement has been issued under the 1933 Act
and no proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for
additional information has been complied with. In addition, each
Indenture has been duly qualified under the 1939 Act.
At the respective times each Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments
thereto (including the filing of the Company's most recent Annual
Report on Form 10-K with the Commission (the "Annual Report on Form
10-K")) became effective and at each Representation Date, the
Registration Statements, any Rule 462(b) Registration Statement and
any amendments and supplements thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and the 1939 Act and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations"), and did
not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. At the date
of the Prospectus, at the Closing Time and at each Date of Delivery,
if any, the Prospectus and any amendments and supplements thereto did
not and will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. If the Company elects to rely upon Rule
434 of the 1933 Act Regulations, the Company will comply with the
requirements of Rule 434. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply to
any statement contained in any Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through ▇▇▇▇▇▇▇
▇▇▇▇▇ expressly for use in any Registration Statement or the
Prospectus.
Each preliminary prospectus and prospectus filed as part of
the Registration Statements as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations, and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with the offering
of Underwritten Securities will, at the time of such delivery, be
identical to any electronically transmitted copies thereof filed with
the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(2) Incorporated Documents. Since the end of its latest
fiscal year, the Company has filed all documents and amendments to
previously filed documents required to be filed by it pursuant to
Section 13(a), 13(c), 14 or 15(d) of the 1934 Act. The documents
incorporated or deemed to be incorporated by reference in the
Registration Statements and the Prospectus, when they became effective
or at the time they were or hereafter are filed with the Commission,
were and will be timely filed and otherwise complied and will comply
in all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the "1934 Act
Regulations") and, when read together with the other information in
the Prospectus, at the date of the Prospectus, at the Closing Time and
at each Date of Delivery, if any, did not and will not include an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Copies of
each of the documents incorporated by reference in the Registration
Statements and the Prospectus prior to the date of this Underwriting
Agreement and any applicable Terms Agreement, together with
satisfactory evidence of the filing thereof, have been made available
to the Underwriters.
(3) Independent Accountants; Independent Petroleum Engineers.
The accountants who certified the financial statements and any
supporting schedules thereto included in the Registration Statements
and
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the Prospectus are independent public accountants as required by the
1933 Act and the 1933 Act Regulations. ▇▇▇▇▇ ▇▇▇▇▇ Company, ▇▇▇▇▇▇▇▇
and ▇▇▇▇▇▇▇▇▇▇▇ and Netherland, ▇▇▇▇▇▇ & Associates, Inc., information
derived from the reports of whom is set forth or incorporated by
reference in the Registration Statements and the Prospectus, were, as
of the date of each respective report, and are, as of the date hereof,
independent petroleum engineers with respect to the Company and its
subsidiaries.
(4) Financial Statements. The financial statements of the
Company included in the Registration Statements and the Prospectus,
together with the related schedules and notes, as well as those
financial statements, schedules and notes of any other entity included
therein, present fairly the financial position of the Company and its
consolidated subsidiaries, or such other entity, as the case may be,
at the dates indicated and the statement of operations, shareholders'
equity and cash flows of the Company and its consolidated
subsidiaries, or such other entity, as the case may be, for the
periods specified. Such financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included in the Registration Statements
and the Prospectus present fairly in accordance with GAAP the
information required to be stated therein. The selected financial
data and the summary financial information included in the Prospectus
present fairly the information shown therein and have been compiled on
a basis consistent with that of the audited financial statements
included in the Registration Statements and the Prospectus. In
addition, any pro forma financial statements of the Company and its
subsidiaries and the related notes thereto included in the
Registration Statements and the Prospectus present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein.
(5) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statements and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in, or any adverse
development that materially affects, the condition, financial or
otherwise, or the earnings, business affairs or business prospects of
the Company and its subsidiaries taken as a whole, whether or not
arising in the ordinary course of business (a "Material Adverse
Effect"), (B) there have been no transactions entered into by the
Company or any of its subsidiaries, other than those arising in the
ordinary course of business, which are material with respect to the
Company and its subsidiaries considered as one enterprise and (C)
except for regular dividends on the Company's common stock or
preferred stock, in amounts per share that are consistent with past
practice or the applicable charter document or supplement thereto,
respectively, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(6) Good Standing of the Company. The Company has been duly
organized and is validly existing as a Texas corporation in good
standing under the laws of the State of Texas and has all corporate
power and authority necessary to own, lease and operate its properties
and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under, or as contemplated
under, this Underwriting Agreement and the applicable Terms Agreement.
The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing could not reasonably be
expected, individually or in the aggregate, to have a Material Adverse
Effect.
(7) Good Standing of Subsidiaries. Each subsidiary of the
Company that is a corporation (a "Corporate Subsidiary") has been duly
incorporated and each subsidiary of the Company that is a partnership
(a "Partnership Subsidiary") has been duly organized and, in each
case, is validly existing in
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good standing under the laws of the jurisdiction of its incorporation
or organization, as applicable, has corporate or partnership power and
authority, as applicable, to own, lease and operate its properties and
to conduct its business as described in the Prospectus. Each
Corporate Subsidiary is duly qualified as a foreign corporation and
each Partnership Subsidiary that is a limited partnership is duly
registered, in each case, to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good
standing could not reasonably be expected, individually, or in the
aggregate, to have a Material Adverse Effect. All of the issued and
outstanding capital stock of each of the Corporate Subsidiaries has
been duly authorized and is validly issued, fully paid and
non-assessable, with no personal liability attaching to the ownership
thereof and, except as otherwise stated in the Registration Statements
and the Prospectus, all of such stock or other equity interests, as
the case may be, of each subsidiary of the Company are owned by the
Company, directly or indirectly, free and clear of any security
interest, mortgage, pledge, lien, charge, encumbrance, claim or
equity.
(8) Capitalization. If the Prospectus contains a
"Capitalization" section purporting to set forth the authorized,
issued and outstanding shares of capital stock of the Company, then
such information with respect to such shares is as set forth in the
column entitled "Actual" under such section (except for subsequent
issuances thereof, if any contemplated under this Underwriting
Agreement, pursuant to reservations, agreements or employee benefit
plans referred to in the Prospectus or pursuant to the exercise of
convertible securities or options referred to in the Prospectus). If
the Prospectus contains a "Capitalization" section purporting to set
forth the authorized, issued and outstanding shares of capital stock
of the Company as adjusted to give effect to the sale of Underwritten
Securities and the application of the net proceeds therefrom, then
such information with respect to such shares and such proceeds is as
set forth in the column entitled "Adjusted" under such section. All
issued and outstanding shares of capital stock of the Company have
been duly authorized and validly issued by the Company and are fully
paid and non-assessable with no personal liability attaching to the
ownership thereof, and none of such shares of capital stock was issued
in violation of preemptive or other similar rights of any
securityholder of the Company.
(9) Authorization of this Underwriting Agreement and Terms
Agreement. This Underwriting Agreement has been, and the applicable
Terms Agreement as of the date thereof will have been, duly
authorized, executed and delivered by the Company and constitute valid
and legally binding obligations of the Company, enforceable against
the Company in accordance with their terms, except as rights to
indemnity and contribution hereunder and thereunder may be limited by
federal or state securities laws or the public policy underlying such
laws, and except as enforceability may be limited by applicable
bankruptcy, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or
at law).
(10) Authorization of Common Stock. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement
include Common Stock, such Underwritten Securities have been, or as of
the date of such Terms Agreement will have been, duly authorized by
the Company for issuance and sale pursuant to this Underwriting
Agreement and such Terms Agreement. Such Underwritten Securities,
when issued and delivered by the Company pursuant to this Underwriting
Agreement and such Terms Agreement against payment of the
consideration therefor specified in such Terms Agreement, will be
validly issued, fully paid and non-assessable and will not be subject
to preemptive or other similar rights of any securityholder of the
Company. No holder of such Underwritten Securities is or will be
subject to personal liability by reason of being such a holder.
(11) Authorization of Preferred Stock and/or Depositary
Shares. If the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Preferred Stock and/or Depositary
Shares, such Underwritten Securities have been, or as of the date of
such Terms Agreement will have been, duly
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authorized by the Company for issuance and sale pursuant to this
Underwriting Agreement and such Terms Agreement. The applicable
Preferred Stock, when issued and delivered by the Company pursuant to
this Underwriting Agreement and such Terms Agreement against payment
of the consideration therefor, or for the related Depositary Shares,
as the case may be, specified in such Terms Agreement, will be validly
issued, fully paid and non-assessable and will not be subject to
preemptive or other similar rights of any securityholder of the
Company. In addition, upon deposit by the Company of any Preferred
Stock represented by Depositary Shares with the applicable Depositary
and the execution and delivery by such Depositary of the Depositary
Receipts evidencing such Depositary Shares, in each case pursuant to
the applicable Deposit Agreement, such Depositary Shares will
represent legal and valid interests in such Preferred Stock. No
holder of such Preferred Stock or Depositary Receipts evidencing
Depositary Shares is or will be subject to personal liability by
reason of being such a holder. The applicable Certificate of
Designations will be in full force and effect prior to the Closing
Time.
(12) Authorization of Deposit Agreement. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement
include Depositary Shares or if Debt Securities are convertible into
Depositary Shares representing Preferred Stock, the applicable Deposit
Agreement has been, or prior to the issuance of such Depositary Shares
will have been, duly authorized, executed and delivered by the Company
and, upon such authorization, execution and delivery, will constitute
a valid and legally binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the enforcement of
creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
Each registered holder of a Depositary Receipt under the applicable
Deposit Agreement will be entitled to the proportional rights,
preferences and limitations of the Preferred Stock represented by the
Depositary Shares evidenced by such Depositary Receipt and to such
other rights as are granted to such registered holder in such Deposit
Agreement.
(13) Authorization of Senior Debt Securities and/or
Subordinated Debt Securities. If the Underwritten Securities being
sold pursuant to the applicable Terms Agreement include Senior Debt
Securities and/or Subordinated Debt Securities, such Underwritten
Securities have been, or as of the date of such Terms Agreement will
have been, duly authorized by the Company for issuance and sale
pursuant to this Underwriting Agreement and such Terms Agreement.
Such Underwritten Securities, when issued and authenticated in the
manner provided for in the applicable Indenture and delivered against
payment of the consideration therefor specified in such Terms
Agreement, will constitute valid and legally binding obligations of
the Company, enforceable against the Company in accordance with their
terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws
affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by
proceedings in equity or at law), and except further as enforcement
thereof may be limited by (A) requirements that a claim with respect
to any Debt Securities denominated other than in U.S. dollars (or a
foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental authority to
limit, delay or prohibit the making of payments outside the United
States. Such Underwritten Securities will be in the form contemplated
by, and each registered holder thereof is entitled to the benefits of,
the applicable Indenture.
(14) Authorization of the Indentures. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement
include Senior Debt Securities and/or Subordinated Debt Securities or
if Preferred Stock is, or Depositary Shares representing Preferred
Stock are, convertible into Debt Securities, each applicable Indenture
has been, or prior to the issuance of the Debt Securities thereunder
will have been, duly authorized, executed and delivered by the Company
and, upon such authorization, execution and delivery, will constitute
a valid and legally binding agreement of the Company, enforceable
against the
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Company in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting the enforcement of creditors'
rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
(15) Authorization of Warrants. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement
include Warrants, such Underwritten Securities have been, or as of the
date of such Terms Agreement will have been, duly authorized by the
Company for issuance and sale pursuant to this Underwriting Agreement
and such Terms Agreement. Such Underwritten Securities, when issued
and authenticated in the manner provided for the applicable Warrant
Agreement and delivered against payment of the consideration therefor
specified in such Terms Agreement, will constitute valid and legally
binding obligations of the Company, entitled to the benefits provided
by such Warrant Agreement and enforceable against the Company in
accordance with their terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting the enforcement of creditors' rights generally
and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law).
(16) Authorization of Warrant Agreement. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement
include Warrants, each applicable Warrant Agreement has been, or prior
to the issuance of such Underwritten Securities will have been, duly
authorized, executed and delivered by the Company and, upon such
authorization, execution and delivery, will constitute a valid and
legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting the enforcement of creditors'
rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
(17) Authorization of Underlying Securities. If the
Underlying Securities related to the Underwritten Securities being
sold pursuant to the applicable Terms Agreement include Common Stock,
Preferred Stock or Depositary Shares, such Underlying Securities have
been, or as of the date of such Terms Agreement will have been, duly
authorized and reserved for issuance by the Company upon exercise of
the Common Stock Warrants or Preferred Stock Warrants, as applicable,
or upon conversion of the related Preferred Stock, Depositary Shares,
Senior Debt Securities or Subordinated Debt Securities, as applicable.
If the Underlying Securities include Common Stock or Preferred Stock,
such Underlying Securities, when issued upon such exercise or
conversion, as applicable, will be validly issued, fully paid and
non-assessable and will not be subject to preemptive or other similar
rights of any securityholder of the Company. If the Underlying
Securities include Depositary Shares, such Underlying Securities, upon
deposit by the Company of the Preferred Stock represented thereby with
the applicable Depositary and the execution and delivery by such
Depositary of the Depositary Receipts evidencing such Depositary
Shares, in each case pursuant to the applicable Deposit Agreement,
will represent legal and valid interests in such Preferred Stock. No
holder of such Common Stock, Preferred Stock or Depositary Receipts
evidencing Depository Shares is or will be subject to personal
liability by reason of being such a holder. If the Underlying
Securities related to the Underwritten Securities being sold pursuant
to the applicable Terms Agreement include Senior Debt Securities
and/or Subordinated Debt Securities, such Underlying Securities have
been, or as of the date of such Terms Agreement will have been, duly
authorized for issuance by the Company upon the exercise of the Debt
Security Warrants or upon conversion of the related Preferred Stock or
Depositary Shares, as applicable. Such Underlying Securities, when
issued and authenticated in the manner provided for in the applicable
Indenture and delivered in accordance with the terms of the Debt
Security Warrants or the related Preferred Stock or Depositary Shares,
as applicable, will constitute valid and legally binding obligations
of the Company, enforceable against the Company in accordance with
their terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws
affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought
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by proceedings in equity or at law), and except further as enforcement
thereof may be limited by (A) requirements that a claim with respect
to any Debt Securities denominated other than in U.S. dollars (or a
foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental authority to
limit, delay or prohibit the making of payments outside the United
States.
(18) Descriptions of the Underwritten Securities, Underlying
Securities, Indentures, Deposit Agreement and Warrant Agreement. The
Underwritten Securities being sold pursuant to the applicable Terms
Agreement and each applicable Indenture, Deposit Agreement and Warrant
Agreement, as of the date of the Prospectus, and any Underlying
Securities, when issued and delivered in accordance with the terms of
the related Underwritten Securities, will conform in all material
respects to the statements relating thereto contained in the
Prospectus and will be in substantially the form filed or incorporated
by reference, as the case may be, as an exhibit to the Registration
Statement.
(19) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is in violation of its articles or
certificate of incorporation or by-laws (or partnership agreement, in
the case of Partnership Subsidiaries) or in default in the performance
or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which it
or any of them may be bound, or to which any of the property or assets
of the Company or any of its subsidiaries is subject (collectively,
"Agreements and Instruments"), except for such defaults or violations
the effect of which could not be reasonably expected, individually or
in the aggregate, to have a Material Adverse Effect. The execution,
delivery and performance of this Underwriting Agreement, the
applicable Terms Agreement and each applicable Indenture, Warrant
Agreement and Deposit Agreement and any other agreement or instrument
entered into or issued or to be entered into or issued by the Company
in connection with the transactions contemplated hereby or thereby or
in the Registration Statements and the Prospectus, and the
consummation of the transactions contemplated herein and in the
Registration Statements and the Prospectus (including the issuance and
sale of the Underwritten Securities and the use of the proceeds from
the sale of the Underwritten Securities as described under the caption
"Use of Proceeds") and compliance by the Company with its obligations
hereunder and thereunder, have been duly authorized by all necessary
corporate action and do not and will not (except as disclosed in the
Registration Statements and the Prospectus), whether with or without
the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any assets, properties or operations of the
Company or any of its subsidiaries pursuant to the terms of any
Agreements and Instruments (except for such conflicts, breaches,
defaults, events or liens, charges or encumbrances that would not
result in a Material Adverse Effect) nor will such action result in
any violation of the articles or certificate of incorporation or
by-laws of the Company or any of its subsidiaries or any applicable
law, statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality (including the Alaska Public
Utilities Commission) or court, domestic or foreign, having
jurisdiction over the Company or any of its subsidiaries (or
partnership agreement, in the case of Partnership Subsidiaries) or any
of their assets, properties or operations. As used herein, a
"Repayment Event" means any event or condition which gives the holder
of any note, debenture or other evidence of indebtedness (or any
person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of its subsidiaries.
(20) Absence of Proceedings. Except as set forth in the
Registration Statements or the Prospectus, there is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or to
the knowledge of the Company threatened, against or affecting the
Company or any of its subsidiaries which is required to be disclosed
in the Registration
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Statements and the Prospectus, or which might reasonably be expected
to result in a Material Adverse Effect or which might reasonably be
expected to materially and adversely affect the assets, properties or
operations thereof or the consummation of the transactions
contemplated under this Underwriting Agreement, the applicable Terms
Agreement or any applicable Indenture, Warrant Agreement or Deposit
Agreement or the performance by the Company of its obligations
hereunder and thereunder. The aggregate of all pending legal or
governmental proceedings to which the Company or any of its
subsidiaries is a party or of which any of their respective assets,
properties or operations is the subject which are not described in the
Registration Statements and the Prospectus, including ordinary routine
litigation incidental to the business, could not reasonably be
expected to result in a Material Adverse Effect.
(21) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statements, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(22) Absence of Further Requirements. Except as required by
the 1933 Act, the 1934 Act and applicable state or foreign securities
laws, except for the qualification of each applicable Indenture under
the Trust Indenture Act, and except such as already have been
obtained, no filing with, or authorization, approval, consent,
license, order registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign, is necessary or
required for the execution, delivery and performance by the Company of
this Underwriting Agreement or the applicable Terms Agreement or in
connection with the transactions contemplated under this Underwriting
Agreement, such Terms Agreement or any applicable Indenture, Deposit
Agreement or Warrant Agreement.
(23) Possession of Licenses and Permits. The Company and
each of its subsidiaries possess such permits, licenses, franchises,
approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state,
local or foreign regulatory agencies or bodies necessary to own, lease
and operate their respective properties and to conduct the business
now operated by them, except where the failure to so possess would
not, singly or in the aggregate, result in a Material Adverse Effect.
The Company and each of its subsidiaries have fulfilled and performed
and are in compliance with the material terms and conditions of all
such Governmental Licenses, except where the failure so to comply
would not, singly or in the aggregate, result in a Material Adverse
Effect. All of the Governmental Licenses are valid and in full force
and effect, except where the invalidity of such Governmental Licenses
or the failure of such Governmental Licenses to be in full force and
effect would not result in a Material Adverse Effect, and no event has
occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material
impairment of the rights of the holder of any such Government License,
except where such revocation, termination or other impairment would
not, singly or in the aggregate, result in a Material Adverse Effect.
(24) Title to Property. The Company and each of its
subsidiaries owns or has valid rights to use all items of real and
personal property which are material to the business of the Company
and its subsidiaries, taken as a whole, in each case, free and clear
of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind which could reasonably be
expected to have a Material Adverse Effect. All oil and gas leases to
which the Company or any of its subsidiaries is a party are in full
force and effect, and no default has occurred or is continuing
thereunder which could reasonably be expected to have a Material
Adverse Effect.
(25) Investment Company Act; Public Utility Holding Company
Act. The Company is not, and upon the issuance and sale of the
Underwritten Securities as herein contemplated and the application of
the net proceeds therefrom as described in the Prospectus will not be,
an "investment company" within the
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meaning of the Investment Company Act of 1940, as amended or a
"holding company" within the meaning of the Public Utility Holding
Company Act of 1935, as amended, or the rules or regulations
thereunder.
(26) Environmental Laws. Except as otherwise stated in the
Registration Statements and the Prospectus, neither the Company nor
any of its subsidiaries is in violation of any federal, state, local
or foreign statute, law, rule, regulation, ordinance, code, policy or
rule of common law or any judicial or administrative interpretation
thereof including any judicial or administrative order, consent,
decree or judgment which violation could reasonably be expected to
have a Material Adverse Effect. In the ordinary course of its
business, the Company conducts a periodic review of the effect of any
foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("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, the Company has concluded that, except as set forth in the
Registration Statements or in the Prospectus, such associated costs
and liabilities could not reasonably be expected to, singly or in the
aggregate, have a Material Adverse Effect.
(27) Registration Rights. There are no contracts, agreements
or understandings between the Company and any person granting such
person the right to require the Company to include such securities in
the securities registered pursuant to the Registration Statements.
(28) Compliance with Cuba Act. The Company has complied
with, and is and will be in compliance with, the provisions of that
certain Florida act relating to disclosure of doing business with
Cuba, codified as Section 517.075 of the Florida statutes, and the
rules and regulations thereunder, or is exempt therefrom.
(b) Officers' Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries on behalf of the Company or any such
subsidiary and delivered to any Underwriter or to counsel for the Underwriters
in connection with the offering of the Underwritten Securities shall be deemed
a representation and warranty by the Company to each Underwriter as to the
matters covered thereby on the date of such certificate.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Underwritten Securities. The several commitments of the
Underwriters to purchase the Underwritten Securities pursuant to the applicable
Terms Agreement shall be deemed to have been made on the basis of the
representations and warranties herein contained and shall be subject to the
terms and conditions herein set forth.
(b) Option Underwritten Securities. In addition, subject to the
terms and conditions herein set forth, the Company may grant, if so provided in
the applicable Terms Agreement, an option to the Underwriters, severally and
not jointly, to purchase up to the number or aggregate principal amount, as the
case may be, of the Option Underwritten Securities set forth therein at a price
per Option Underwritten Security equal to the price per Initial Underwritten
Security, less an amount equal to any dividends or distributions declared by
the Company and paid or payable on the Initial Underwritten Securities but not
payable on the Option Underwritten Securities. Such option, if granted, will
expire 30 days after the date of such Terms Agreement, and may be exercised in
whole or in part at one time only for the purpose of covering over-allotments
which may be made in connection with the offering and distribution of the
Initial Underwritten Securities upon notice by ▇▇▇▇▇▇▇ ▇▇▇▇▇ to the Company
setting forth the number or aggregate principal amount, as the case may be, of
Option Underwritten Securities as to which the several Underwriters are then
exercising the option and the time, date and place of payment and delivery for
such Option
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Underwritten Securities. Such time and date of payment and delivery ("Date of
Delivery") shall be determined by ▇▇▇▇▇▇▇ ▇▇▇▇▇, but shall not be later than
seven full business days after the exercise of said option, nor in any event
prior to the Closing Time, unless otherwise agreed upon by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and
the Company. If the option is exercised as to all or any portion of the Option
Underwritten Securities, each of the Underwriters, severally and not jointly,
will purchase that proportion of the total number or aggregate principal
amount, as the case may be, of Option Underwritten Securities then being
purchased which the number or aggregate principal amount, as the case may be,
of Initial Underwritten Securities each such Underwriter has severally agreed
to purchase as set forth in such Terms Agreement bears to the total number or
aggregate principal amount, as the case may be, of Initial Underwritten
Securities, subject to such adjustments as ▇▇▇▇▇▇▇ ▇▇▇▇▇ in its discretion
shall make to eliminate any sales or purchases of a fractional number or
aggregate principal amount, as the case may be, of Option Underwritten
Securities.
(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇
L.L.P., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or at such other place as
shall be agreed upon by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Company, at 10:00 A.M. (Eastern
time) on the third (fourth, if the pricing occurs after 4:30 P.M. (Eastern
time) on any given day) business day after the date of the applicable Terms
Agreement (unless postponed in accordance with the provisions of Section 10
hereof), or such other time not later than ten business days after such date as
shall be agreed upon by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Company (such time and date of
payment and delivery being herein called "Closing Time"). In addition, in the
event that the Underwriters have exercised their option, if any, to purchase
any or all of the Option Underwritten Securities, payment of the purchase price
for, and delivery of such Option Underwritten Securities, shall be made at the
above-mentioned offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be agreed upon by ▇▇▇▇▇▇▇
▇▇▇▇▇ and the Company, on the relevant Date of Delivery as specified in the
notice from ▇▇▇▇▇▇▇ ▇▇▇▇▇ to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery
to ▇▇▇▇▇▇▇ ▇▇▇▇▇ for the respective accounts of the Underwriters of the
Underwritten Securities to be purchased by them. It is understood that each
Underwriter has authorized ▇▇▇▇▇▇▇ ▇▇▇▇▇, for its account, to accept delivery
of, receipt for, and make payment of the purchase price for, the Underwritten
Securities which it has severally agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇,
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Underwritten
Securities to be purchased by any Underwriter whose funds have not been
received by the Closing Time or the relevant Date of Delivery, as the case may
be, but such payment shall not relieve such Underwriter from its obligations
hereunder.
(d) Denominations; Registration. The Underwritten Securities,
certificates for the Underwritten Securities or Depositary Receipts evidencing
the Depositary Shares, as applicable, shall be in such denominations and
registered in such names as ▇▇▇▇▇▇▇ ▇▇▇▇▇ may request in writing at least one
full business day prior to the Closing Time or the relevant Date of Delivery,
as the case may be. The Underwritten Securities, certificates for the
Underwritten Securities or Depositary Receipts evidencing the Depositary
Shares, as applicable, will be made available for examination and packaging by
▇▇▇▇▇▇▇ ▇▇▇▇▇ in The City of New York not later than 10:00 A.M. (Eastern time)
on the business day prior to the Closing Time or the relevant Date of Delivery,
as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with
▇▇▇▇▇▇▇ ▇▇▇▇▇ and with each Underwriter participating in the offering of
Underwritten Securities, as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A of the 1933 Act Regulations and/or Rule 434
of the 1933 Act Regulations, if and as applicable, and will notify the
Representative(s) and/or counsel for the Underwriters immediately, and
confirm the notice in writing, of (i) the effectiveness of any post-
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effective amendment to the Registration Statements or the filing of
any supplement or amendment to the Prospectus, (ii) the receipt of any
comments from the Commission, (iii) any request by the Commission for
any amendment to the Registration Statements or any amendment or
supplement to the Prospectus or for additional information with
respect thereto, and (iv) the issuance by the Commission of any stop
order suspending the effectiveness of any Registration Statement or of
any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the
Underwritten Securities for offering or sale in any jurisdiction, or
of the initiation or threatening of any proceedings for any of such
purposes. The Company will file the Prospectus with the Commission
pursuant to and in accordance with subparagraph (2) (or, if applicable
and if consented to by you, subparagraph (5)) of Rule 424(b) not later
than the second business day following the execution and delivery of
any Terms Agreement and otherwise will promptly effect the filings
necessary pursuant to Rule 424 and will take such steps as it deems
necessary to ascertain and notify the Representative(s) (and to
confirm such notification in writing if requested by the
Representative(s)) promptly whether the Prospectus transmitted for
filing under Rule 424 was received for filing by the Commission and,
in the event that it was not, it will promptly file the Prospectus.
The Company will make every reasonable effort to prevent the issuance
of any stop order and, if any stop order is issued, to obtain the
lifting thereof as soon as possible.
(b) Filing of Amendments. For as long as a Prospectus is
required to be delivered with respect to an offering of Underwritten
Securities hereunder, the Company will give ▇▇▇▇▇▇▇ ▇▇▇▇▇ notice of
its intention to file or prepare any amendment to the Registration
Statements (including any filing under Rule 462(b) of the 1933 Act
Regulations), any Term Sheet or any amendment, supplement or revision
to either the prospectus included in the Registration Statement at the
time it became effective or to the Prospectus, whether pursuant to the
1933 Act, the 1934 Act or otherwise (including by filing any documents
that would be incorporated by reference), will ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
with copies of any such documents a reasonable amount of time prior to
such proposed filing or use, as the case may be, and will not file or
use any such amendment, supplement or revision to which ▇▇▇▇▇▇▇ ▇▇▇▇▇
or counsel for the Underwriters shall reasonably object in writing.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to ▇▇▇▇▇▇▇ ▇▇▇▇▇ and counsel for the
Underwriters, without charge, [FIVE SIGNED] copies of the Registration
Statements as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference
therein and documents incorporated or deemed to be incorporated by
reference therein) and [SIGNED] copies of all consents and
certificates of experts, and, as requested, will also deliver to
▇▇▇▇▇▇▇ ▇▇▇▇▇, without charge, a sufficient number of conformed copies
of the Registration Statements as originally filed and of each
amendment thereto (without exhibits) for distribution of a copy to
each of the other Underwriters. Copies of the Registration Statements
and each amendment thereto furnished to the Underwriters will be
identical to any electronically transmitted copies thereof filed with
the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(d) Delivery of Prospectuses. The Company will deliver to
each Underwriter, without charge, as many copies of each preliminary
prospectus as such Underwriter may reasonably request, and the Company
hereby consents to the use of such copies for purposes permitted by
the 1933 Act. The Company will furnish to each Underwriter, without
charge, during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, such number of copies of
the Prospectus (or, if applicable, of the Prospectus as amended or
supplemented after the effective date of the Third Registration
Statement) as such Underwriter may reasonably request. The Prospectus
and any amendments or supplements thereto furnished to the
Underwriters will be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to
the extent permitted by Regulation S-T.
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(e) Continued Compliance with Securities Laws. The Company
will comply with the 1933 Act and the 1933 Act Regulations and the
1934 Act and the 1934 Act Regulations so as to permit the completion
of the distribution of the Underwritten Securities as contemplated in
this Underwriting Agreement and the applicable Terms Agreement and in
the Registration Statements and the Prospectus. If at any time when
the Prospectus is required by the 1933 Act or the 1934 Act to be
delivered in connection with sales of the Securities, any event shall
occur or condition shall exist as a result of which it is necessary,
in the opinion of counsel for the Underwriters or for the Company, to
amend any Registration Statement in order that such Registration
Statement will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or to amend or
supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it
is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend any Registration
Statement or amend or supplement the Prospectus in order to comply
with any law, the Company will notify the Representative(s) promptly
(and if requested by the Representative(s), confirm such notice in
writing) and will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be
necessary to correct such statement or omission or to make such
Registration Statement or the Prospectus comply with such
requirements, and the Company will furnish to the Underwriters,
without charge, such number of copies of such amendment or supplement
as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best
efforts, in cooperation with the Underwriters, to qualify the
Underwritten Securities and any related Underlying Securities for
offering and sale under the applicable securities laws of such states
and other jurisdictions (domestic or foreign) as ▇▇▇▇▇▇▇ ▇▇▇▇▇ may
designate and to maintain such qualifications in effect as long as
required for the distribution of such Securities; provided, however,
that the Company shall not be obligated to consent to service of
process (except service of process with respect to the offering and
sale of such Securities) or to qualify as a foreign corporation or as
a dealer in securities in any jurisdiction in which it is not so
qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject.
In each jurisdiction in which the Underwritten Securities or any
related Underlying Securities have been so qualified, the Company will
file such statements and reports as may be required by the laws of
such jurisdiction to continue such qualification in effect as long as
required for the distribution of such Securities and to advise the
Underwriters promptly of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose.
(g) Earnings Statement. The Company will make generally
available to its securityholders an earnings statement of the Company
for the purposes of, and to provide the benefits contemplated by, the
last paragraph of Section 11(a) of the 1933 Act covering a period of
12 months beginning after the effective date of the Third Registration
Statement, as soon as is reasonably practicable after the termination
of such 12-month period but not later than 90 days after such
termination.
(h) Reservation of Securities. If the applicable Terms
Agreement specifies that any related Underlying Securities include
Common Stock, Preferred Stock and/or Depositary Shares, the Company
will reserve and keep available at all times, free of preemptive or
other similar rights, a sufficient number of shares of Common Stock
and/or Preferred Stock, as applicable, for the purpose of enabling the
Company to satisfy any obligations to issue such Underlying Securities
upon exercise of the related Warrants, as applicable, or upon
conversion of the Preferred Stock, Depositary Shares, Senior Debt
Securities or Subordinated Debt Securities, as applicable.
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(i) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Underwritten Securities in the
manner specified in the Prospectus under "Use of Proceeds".
(j) Listing. The Company will use its best efforts to effect
the listing of the Underwritten Securities and any related Underlying
Securities, prior to the Closing Time, on any national securities
exchange or quotation system if and as specified in the applicable
Terms Agreement.
(k) Restriction on Sale of Securities. Between the date of
the applicable Terms Agreement and the Closing Time or such other date
specified in such Terms Agreement, the Company will not, without the
prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, directly or indirectly, issue,
sell, offer to sell, grant any option for the sale of, or otherwise
dispose of, the securities specified in such Terms Agreement.
(l) Reporting Requirements. The Company, during the period
when the Prospectus is required to be delivered under the 1933 Act or
the 1934 Act, will file all documents (and any amendments to
previously filed documents) required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934
Act and the 1934 Act Regulations. The Company also will, upon
request, furnish to ▇▇▇▇▇▇▇ ▇▇▇▇▇ and each of the other Underwriters
for a period of five years from the date of this Agreement (i) copies
of any reports or other communications which the Company shall send to
its stockholders or shall from time to time publish or publicly
disseminate, (ii) copies of all annual, quarterly and current reports
filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other
similar form as may be designated by the Commission, and (iii) such
other non-confidential information as the Underwriters may reasonably
request regarding the Company or its subsidiaries.
SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay
all expenses incident to the performance of its obligations under this
Underwriting Agreement or the applicable Terms Agreement, including (i) the
preparation, printing and filing of the Registration Statements (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of
this Underwriting Agreement, any Terms Agreement, any Agreement among
Underwriters, the Indentures, any Deposit Agreement, any Warrant Agreement and
such other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Underwritten Securities or any
related Underlying Securities, (iii) the preparation, issuance and delivery of
the Underwritten Securities and any related Underlying Securities, any
certificates for the Underwritten Securities or such Underlying Securities or
Depositary Receipts evidencing the Depositary Shares, as applicable, to the
Underwriters, including any transfer taxes and any stamp or other duties
payable upon the sale, issuance or delivery of the Underwritten Securities to
the Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors or agents (including transfer agents and
registrars), as well as the fees and disbursements of the Trustees, any
Depositary and any Warrant Agent, and their respective counsel, (v) the
qualification of the Underwritten Securities and any related Underlying
Securities under state securities laws in accordance with the provisions of
Section 3(f) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation, printing and delivery of the Blue Sky Survey
and any Legal Investment Survey, and any amendment thereto, (vi) the printing
and delivery to the Underwriters of copies of each preliminary prospectus, any
Term Sheet, and the Prospectus and any amendments or supplements thereto, (vii)
the fees charged by nationally recognized statistical rating organizations for
the rating of the Underwritten Securities and any related Underlying
Securities, if applicable, (viii) the fees and expenses incurred with respect
to the listing of the Underwritten Securities and any related Underlying
Securities, if applicable, (ix) the filing fees incident to the review, if any,
by the National Association of Securities Dealers, Inc. (the "NASD") of the
terms of the sale of the Underwritten Securities and any related Underlying
Securities, and (x) the fees and expenses of any Underwriter acting in the
capacity of a "qualified independent underwriter" (as defined in Section 2(l)
of Schedule E of the bylaws of the NASD), if applicable. Notwithstanding the
foregoing, except as expressly provided in clause (v) above or by Section 4(b),
all legal fees and disbursements of counsel to the Underwriters shall be the
sole responsibility of the Underwriters.
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(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by ▇▇▇▇▇▇▇ ▇▇▇▇▇ in accordance with the provisions of Section 5 or
Section 9(b)(i) hereof, the Company shall reimburse the Underwriters for all of
their out-of-pocket expenses, including the reasonable fees and disbursements
of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations
of the Underwriters to purchase and pay for the Underwritten Securities
pursuant to the applicable Terms Agreement are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any of its subsidiaries
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statements. The
Registration Statements, including any Rule 462(b) Registration
Statement, have become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statements shall have
been issued under the 1933 Act and no proceedings for that purpose
shall have been initiated or be pending or threatened by the
Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. A prospectus containing
information relating to the description of the Underwritten Securities
and any related Underlying Securities, the specific method of
distribution and similar matters shall have been filed with the
Commission in accordance with Rule 424(b)(1), (2), (3), (4) or (5), as
applicable (or any required post-effective amendment providing such
information shall have been filed and declared effective in accordance
with the requirements of Rule 430A), or, if the Company has elected to
rely upon Rule 434 of the 1933 Act Regulations, a Term Sheet including
the Rule 434 Information shall have been filed with the Commission in
accordance with Rule 424(b)(7).
(b) Opinion of Counsel for Company. At Closing Time, ▇▇▇▇▇▇▇
▇▇▇▇▇ shall have received the favorable opinion, dated as of Closing
Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company (or other
counsel acceptable to the Underwriters), in form and substance
satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters,
to the effect set forth in Exhibit B hereto and to such further effect
as counsel to the Underwriters may reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Time,
▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have received the favorable opinion, dated as of
Closing Time, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (a partnership which
includes professional corporations), counsel for the Underwriters (or
other counsel acceptable to the Underwriters), together with signed or
reproduced copies of such letter for each of the other Underwriters,
with respect to certain matters. In giving such opinion, such counsel
may rely, as to all matters governed by the laws of jurisdictions
other than the law of the State of New York, the federal law of the
United States and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇.
Such counsel may also state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem proper,
upon certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(d) Officers' Certificate. At Closing Time, there shall not
have been, since the date of the applicable Terms Agreement or since
the respective dates as of which information is given in the
Prospectus, any material adverse change, or any adverse development
that materially affects the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and
its subsidiaries taken as a whole, whether or not arising in the
ordinary course of business, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have received a
certificate of the President or a Vice President of the Company and of
the chief financial officer or chief accounting officer of the
Company, dated as of Closing Time, to the effect that (i) there has
been no such material adverse change, (ii) the representations and
warranties in Section 1 are true and correct with the same force and
effect as though expressly made at and as of the Closing Time,
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(iii) the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the
Closing Time, and (iv) no stop order suspending the effectiveness of
any of the Registration Statements has been issued and no proceedings
for that purpose have been initiated or threatened by the Commission.
(e) Accountant's Comfort Letter. At the time of the
execution of the applicable Terms Agreement, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have
received from KPMG Peat Marwick LLP (or such other accountants
reasonably acceptable to the Underwriters) a letter dated such date,
in form and substance satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇, together with
signed or reproduced copies of such letter for each of the other
Underwriters, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in the Registration Statements and the
Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, ▇▇▇▇▇▇▇
▇▇▇▇▇ shall have received from KPMG Peat Marwick LLP (or such other
accountants reasonably acceptable to the Underwriters) a letter, dated
as of Closing Time, to the effect that they reaffirm the statements
made in the letter furnished pursuant to subsection (e) of this
Section 5, except that the specified date referred to shall be a date
not more than three business days prior to the Closing Time.
(g) Ratings. At Closing Time and at any relevant Date of
Delivery, the Underwritten Securities shall have the ratings accorded
by any "nationally recognized statistical rating organization", as
defined by the Commission for purposes of Rule 436(g)(2) of the 1933
Act Regulations, if and as specified in the applicable Terms
Agreement, and the Company shall have delivered to ▇▇▇▇▇▇▇ ▇▇▇▇▇ a
letter, dated as of such date, from each such rating organization, or
other evidence satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇, confirming that the
Underwritten Securities have such ratings. Since the time of
execution of such Terms Agreement, there shall not have occurred a
downgrading in the rating assigned to the Underwritten Securities, if
applicable, or any of the Company's other securities by any such
rating organization, and no such rating organization shall have
publicly announced that it has under surveillance or review its rating
of the Underwritten Securities or any of the Company's other
securities.
(h) Approval of Listing. At Closing Time, the
Underwritten Securities shall have been approved for listing, subject
only to official notice of issuance, if and as specified in the
applicable Terms Agreement.
(i) No Objection. If the Registration Statement or
an offering of Underwritten Securities has been filed with the NASD
for review, the NASD shall not have raised any objection with respect
to the fairness and reasonableness of the underwriting terms and
arrangements.
(j) Lock-up Agreements. On the date of the
applicable Terms Agreement, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have received, in form
and substance satisfactory to it, each lock-up agreement, if any,
specified in such Terms Agreement as being required to be delivered by
the persons listed therein.
(k) Over-Allotment Option. In the event that the
Underwriters are granted an over-allotment option by the Company in
the applicable Terms Agreement and the Underwriters exercise their
option to purchase all or any portion of the Option Underwritten
Securities, the representations and warranties of the Company
contained herein and the statements in any certificates furnished by
the Company or any of its subsidiaries hereunder shall be true and
correct as of each Date of Delivery, and, at the relevant Date of
Delivery, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have received:
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(1) A certificate, dated such Date of Delivery, of the
President or a Vice President of the Company and the chief
financial officer or chief accounting officer of the Company,
confirming that the certificate delivered at the Closing Time
pursuant to Section 5(d) hereof remains true and correct as of
such Date of Delivery.
(2) The favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel
for the Company (or other counsel acceptable to the Underwriters),
in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities and otherwise to the same effect as the
opinion required by Section 5(b) hereof.
(3) The favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (a
partnership which includes professional corporations), counsel for
the Underwriters (or other counsel acceptable to the
Underwriters), dated such Date of Delivery, relating to the Option
Underwritten Securities and otherwise to the same effect as the
opinion required by Section 5(c) hereof.
(4) A letter from KPMG Peat Marwick LLP (or such other
accountants reasonably acceptable to the Underwriters), in form
and substance satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇ and dated such Date of
Delivery, substantially in the same form and substance as the
letter furnished to ▇▇▇▇▇▇▇ ▇▇▇▇▇ pursuant to Section 5(f) hereof,
except that the "specified date" on the letter furnished pursuant
to this paragraph shall be a date not more than three business
days prior to such Date of Delivery.
(l) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with
such documents and opinions as they may reasonably require for the
purpose of enabling them to pass upon the issuance and sale of the
Underwritten Securities as herein contemplated, or in order to evidence
the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and
sale of the Underwritten Securities as herein contemplated shall be
reasonably satisfactory in form and substance to ▇▇▇▇▇▇▇ ▇▇▇▇▇ and
counsel for the Underwriters.
(m) Termination of Terms Agreement. If any condition specified
in this Section 5 shall not have been fulfilled when and as required to
be fulfilled, the applicable Terms Agreement (or, with respect to the
Underwriters' exercise of any applicable over-allotment option for the
purchase of Option Underwritten Securities on a Date of Delivery after
the Closing Time, the obligations of the Underwriters to purchase the
Option Underwritten Securities on such Date of Delivery) may be
terminated by ▇▇▇▇▇▇▇ ▇▇▇▇▇ by notice to the Company at any time at or
prior to the Closing Time (or such Date of Delivery, as applicable),
and such termination shall be without liability of any party to any
other party except as provided in Section 4 and except that Sections 6,
7 and 8 shall survive any such termination and remain in full force and
effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(1) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statements (or any amendment thereto), including the
Rule 430A Information and the Rule 434 Information deemed to be a part
thereof, if applicable, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
any preliminary prospectus
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or the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(2) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
(3) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇
▇▇▇▇▇), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration
Statements (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information deemed to be a part thereof, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto). The foregoing indemnity with respect to any untrue statement or
alleged untrue statement contained in or omission or alleged omission from a
preliminary prospectus shall not inure to the benefit of any Underwriter (or
any person controlling such Underwriter) from whom the person asserting any
loss, liability, claim, damage or expense purchased any of the Underwritten
Securities which are the subject thereof if the Company sustains the burden of
proving that (i) such person was not sent or given a copy of the Prospectus (or
the Prospectus as amended or supplemented), excluding documents incorporated by
reference therein, at or prior to the written confirmation of sale of such
Underwritten Securities to such person and (ii) the untrue statement contained
in or omission from such preliminary prospectus was corrected in the Prospectus
(or the Prospectus as amended or supplemented) and the Company had previously
furnished copies thereof to such Underwriter.
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statements, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statements (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information deemed to be a part thereof, if
applicable, or 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 such Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇
expressly for use in the Registration Statements (or any amendment thereto) or
such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it
is not materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. In the case of parties indemnified pursuant to
Section 6(a) above, counsel to the indemnified parties shall be selected by
▇▇▇▇▇▇▇
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▇▇▇▇▇, and, in the case of parties indemnified pursuant to Section 6(b) above,
counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any
such action; provided, however, that counsel to the indemnifying party shall
not (except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
in respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from
all liability arising out of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have (A) to the extent it considers such request to be reasonable, reimbursed
such indemnified party in accordance with such request, and (B) to the extent
it does not consider such request to be reasonable, provided written notice to
the indemnified party to that effect explaining the reasons therefor, in each
case prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Underwriters, on the other hand, from the
offering of the Underwritten Securities pursuant to the applicable Terms
Agreement or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of the Company, on the one hand, and of the Underwriters, on the other hand, in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of such Underwritten Securities (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the Term Sheet bear to the
aggregate initial public offering price of such Underwritten Securities as set
forth on such cover.
The relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or by
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the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of any such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number or aggregate principal amount, as the case may be, of
Initial Underwritten Securities set forth opposite their respective names in
the applicable Terms Agreement, and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Underwriting Agreement or the applicable Terms Agreement or in certificates of
officers of the Company submitted pursuant hereto or thereto shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any Underwriter or controlling person, or by or on behalf of
the Company, and shall survive delivery of and payment for the Underwritten
Securities.
SECTION 9. Termination.
(a) Underwriting Agreement. This Underwriting Agreement (excluding
the applicable Terms Agreement) may be terminated for any reason at any time by
the Company or by ▇▇▇▇▇▇▇ ▇▇▇▇▇ upon the giving of written notice of such
termination to the other party hereto.
(b) Terms Agreement. ▇▇▇▇▇▇▇ ▇▇▇▇▇ may terminate the applicable
Terms Agreement, by notice to the Company, at any time at or prior to the
Closing Time or any relevant Date of Delivery, if, since the time of execution
of such Terms Agreement, (i) there has been, since the respective dates as of
which information is given in the Prospectus, any material adverse change in,
or any adverse development that materially affects, the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiaries taken as a whole, whether or not arising in the
ordinary course of business, or (ii) there has occurred any material adverse
change in the financial markets in the United States or, if the Underwritten
Securities or any related Underlying Securities include Debt Securities
denominated or payable in, or indexed to, one or more foreign or
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composite currencies, in the international financial markets, or any outbreak
of hostilities or escalation thereof or other calamity or crisis or any change
or development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which
is such as to make it, in the judgment of ▇▇▇▇▇▇▇ ▇▇▇▇▇, impracticable to
market the Underwritten Securities or to enforce contracts for the sale of the
Underwritten Securities, or (iii) trading in any securities of the Company has
been suspended or limited by the Commission or the New York Stock Exchange, or
if trading generally on the New York Stock Exchange or the American Stock
Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by either of said exchanges or by order
of the Commission, the NASD or any other governmental authority, or (iv) a
banking moratorium has been declared by either Federal or New York authorities
or, if the Underwritten Securities or any related Underlying Securities include
Debt Securities denominated or payable in, or indexed to, one or more foreign
or composite currencies, by the relevant authorities in the related foreign
country or countries.
(c) Liabilities. If this Underwriting Agreement or the applicable
Terms Agreement is terminated pursuant to this Section 9, such termination
shall be without liability of any party to any other party except as provided
in Section 4 hereof, and provided further that Sections 6, 7 and 8 shall
survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or
more of the Underwriters shall fail at the Closing Time or the relevant Date of
Delivery, as the case may be, to purchase the Underwritten Securities which it
or they are obligated to purchase under the applicable Terms Agreement (the
"Defaulted Securities"), then ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than
all, of the Defaulted Securities in such amounts as may be agreed upon and upon
the terms herein set forth; if, however, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall not have completed
such arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case may
be, of Defaulted Securities does not exceed 10% of the number or
aggregate principal amount, as the case may be, of Underwritten
Securities to be purchased on such date pursuant to such Terms
Agreement, the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations under such
Terms Agreement bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number or aggregate principal amount, as the
case may be, of Defaulted Securities exceeds 10% of the number or
aggregate principal amount, as the case may be, of Underwritten
Securities to be purchased on such date pursuant to such Terms
Agreement, such Terms Agreement (or, with respect to the Underwriters'
exercise of any applicable over-allotment option for the purchase of
Option Underwritten Securities on a Date of Delivery after the Closing
Time, the obligations of the Underwriters to purchase, and the Company
to sell, such Option Underwritten Securities on such Date of Delivery)
shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a
termination of the applicable Terms Agreement or (ii) in the case of a Date of
Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Company with respect to the related Option Underwritten
Securities, as the case may be, either ▇▇▇▇▇▇▇ ▇▇▇▇▇ or the Company shall have
the right to postpone the Closing Time or the relevant Date of Delivery, as the
case may be, for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or the Prospectus or in any
other documents or arrangements.
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SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to ▇▇▇▇▇▇▇ ▇▇▇▇▇ at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Director, and notices to
the Company shall be directed to it at ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, attention of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Senior Vice President and Chief
Financial Officer.
SECTION 12. Parties. This Underwriting Agreement and the applicable
Terms Agreement shall each inure to the benefit of and be binding upon the
Company, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and, upon execution of such Terms Agreement, any other
Underwriters and their respective successors. Nothing expressed or mentioned
in this Underwriting Agreement or such Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or
in respect of this Underwriting Agreement or such Terms Agreement or any
provision herein or therein contained. This Underwriting Agreement and such
Terms Agreement and all conditions and provisions hereof and thereof are
intended to be for the sole and exclusive benefit of the parties hereto and
thereto and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Underwritten
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT AND
ANY APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW
YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
SECTION 15. Counterparts. This Underwriting Agreement and any Terms
Agreement may be executed in multiple counterparts, each of which taken
together shall constitute one and the same instrument.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this Underwriting Agreement, along with all counterparts, will become
a binding agreement between ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the Company in accordance with
its terms.
Very truly yours,
SEAGULL ENERGY CORPORATION
By:
--------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first
above written:
▇▇▇▇▇▇▇ LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:
-----------------------------
Authorized Signatory
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Exhibit A
SEAGULL ENERGY CORPORATION
(a Texas corporation)
[Type(s) of Underwritten Securities]
TERMS AGREEMENT
[Date]
To: Seagull Energy Corporation
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: [ ]
Ladies and Gentlemen:
We understand that Seagull Energy Corporation, a Texas corporation (the
"Company"), proposes to issue and sell [ shares of its common stock, par value
$0.10 per share (the "Common Stock")] [ shares of its preferred
stock, par value $1.00 per share (the "Preferred Stock")] [in the form of
depositary shares (the "Depositary Shares") each representing of a share
of Preferred Stock] [$ aggregate principal amount of its [unsecured
senior] [unsecured senior subordinated] debt securities (the "Debt
Securities")] [ warrants (the "Common Stock Warrants") to purchase
common stock, par value $0.10 per share] [ warrants (the "Preferred
Stock Warrants") to purchase preferred stock, par value $1.00 per share [
warrants (the "Depositary Shares Warrants" to purchase Depositary Shares] [
warrants (the "Debt Security Warrants") to purchase $
aggregate principal amount of [unsecured senior] [senior subordinated] debt
securities] ([such securities also being hereinafter referred to as] the
"[Initial] Underwritten Securities"). Subject to the terms and conditions set
forth or incorporated by reference herein, we [the underwriters named below
(the "Underwriters")] offer to purchase [, severally and not jointly,] the
[[number] [principal] [amount] of] Underwritten Securities [opposite their
names set forth below] at the purchase price set forth below [, and a
proportionate share of Option Underwritten Securities set forth below, to the
extent any are purchased].
[Number]
[Principal Amount]
Underwriter of [Initial] Underwritten
Securities
________________
Total [$]
===========
A-1
26
The Underwritten Securities shall have the following terms:
[Common Stock]
Title:
Number of shares:
Number of Option Underwritten Securities:
Initial public offering price per share: $
Purchase price per share: $
Listing requirements:
Black-out provisions:
Lock-up provisions:
Other terms and conditions:
Closing date and location:
[Preferred Stock]
Title:
Rank:
Ratings:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share: $
Dividend payment dates:
Stated value: $
Liquidation preference per share: $
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Lock-up provisions:
Initial public offering price per share: $___ plus accumulated dividends, if
any, from _____
Purchase price per share: $___ plus accumulated dividends, if any, from _____
Other terms and conditions:
Closing date and location:
[Depositary Shares]
Title:
Fractional amount of Preferred Stock represented by each Depositary Share:
Ratings:
Rank:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share:
Dividend payment dates:
Liquidation preference per share:
Redemption provisions:
A-2
27
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Lock-up provisions:
Initial public offering price per share: $____ plus accumulated dividends, if
any, from ___
Purchase price per share: $____ plus accumulated dividends, if any, from ___
Other terms and conditions:
Closing date and location:
[Debt Securities]
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
If Fixed Price Offering, initial public offering price per share:
% of the principal amount, plus accrued interest [amortized original
issue discount], if any, from _________________.
Purchase price per share: ___% of principal amount, plus accrued interest
[amortized original issue discount], if any, from _________________.
Form:
Other terms and conditions:
Closing date and location:
[Common Stock] [Preferred Stock] [Depositary Share] [Debt Security] Warrants
Title:
Type:
Number:
Warrant Agent:
Issuable jointly with [Common Stock] [Preferred Stock] [Depositary Share] [Debt
Securities]: [Yes] [No]
Number of [Common Stock] [Preferred Stock] [Depositary Share] [Debt Security]
Warrants issued with each [share of Common Stock] [share of Preferred Stock]
[Depositary Share] [$__________ principal amount of Debt Securities]:
Date(s) from which or period(s) during which [Common Stock] [Preferred Stock]
[Depositary Share] [Debt Security] Warrants are exercisable:
Date(s) on which [Common Stock] [Preferred Stock] [Depositary Share] [Debt
Security] Warrants expire:
Exercise price(s):
Initial public offering price: $
A-3
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Purchase price: $
Title of Underlying Securities:
[Number of shares] [Principal amount] purchasable upon exercise of one [Common
Stock] [Preferred Stock] [Depositary Share] [Debt Security] Warrant:
Terms of Underlying Securities:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I
hereto entitled "Seagull Energy Corporation-- Common Stock, Warrants to
Purchase Common Stock, Preferred Stock, Warrants to Purchase Preferred Stock,
Depositary Shares, Warrants to Purchase Depositary Shares, Debt Securities and
Warrants to Purchase Debt Securities-- Underwriting Agreement" are hereby
incorporated by reference in their entirety herein and shall be deemed to be a
part of this Terms Agreement to the same extent as if such provisions had been
set forth in full herein. Terms defined in such document are used herein as
therein defined.
Please accept this offer no later than ____ o'clock P.M. (New York
City time) on ______________ by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
Very truly yours,
▇▇▇▇▇▇▇ LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:
-------------------------------
Authorized Signatory
[Acting on behalf of itself and the
other named Underwriters.]
Accepted:
SEAGULL ENERGY CORPORATION
By:
-------------------------
Name:
Title:
A-4