EXHIBIT 1
EL PASO CORPORATION
8,790,436 Shares of Common Stock
Underwriting Agreement
January 5, 2004
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
El Paso Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell to ▇.▇. ▇▇▇▇▇▇ Securities Inc. and Deutsche Bank
Securities Inc. (the "Underwriters") an aggregate of 8,790,436 shares of Common
Stock, par value $3.00 per share, of the Company (the "Shares") as set forth in
Schedule I hereto. The shares of Common Stock of the Company to be outstanding
after giving effect to the sale of the Shares are herein referred to as the
"Common Stock".
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement (File No. 333-82412), including a prospectus, relating to the Shares.
The registration statement as amended to the date of this Agreement is referred
to in this Agreement as the "Registration Statement". The term "Base Prospectus"
means the prospectus included in the Registration Statement. The Company has
filed with, or transmitted for filing to, or shall promptly hereafter file with
or transmit for filing to, the Commission a prospectus supplement (the
"Prospectus Supplement") specifically relating to the Shares pursuant to Rule
424 under the Securities Act. If the Company has filed an abbreviated
registration statement pursuant to Rule 462(b) under the Securities Act (the
"Rule 462 Registration Statement"), then any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462 Registration
Statement. The Base Prospectus as supplemented by any applicable Prospectus
Supplement specifically relating to the Securities in the form first used to
confirm sales of the Securities is hereinafter referred to as the "Prospectus."
Any reference in this Agreement to the Registration Statement, the Base
Prospectus, the Prospectus or any amendment or supplement thereto shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act, and any reference to
"amend", "amendment" or "supplement" with respect to the Registration Statement,
the Base Prospectus or the Prospectus shall be deemed to refer to and include
any documents filed after such date under the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") that are deemed to be incorporated by
reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Shares to the
Underwriters as hereinafter provided, and the Underwriters, severally and not
jointly, upon the basis of the representations and warranties herein contained,
but subject to the terms and conditions hereinafter stated, agree to purchase
from the Company the Shares at a purchase price per share of $8.25 (the
"Purchase Price").
2. The Company understands that the Underwriters intend (i) to
make a public offering of the Shares as soon as in their judgment is advisable
after the parties hereto have executed and delivered this Agreement and (ii)
initially to offer the Shares upon the terms set forth in the Prospectus.
3. Payment for the Shares shall be made by wire transfer in
immediately available funds to the account specified by the Company to the
Underwriters at 10:00 a.m. EST on January 8, 2004, or at such other time on the
same or such other date, not later than the fifth Business Day thereafter, as
the Underwriters and the Company may agree upon in writing. The time and date of
such payment for the Shares is referred to herein as the "Closing Date". As used
herein, the term "Business Day" means any day other than a day on which banks
are permitted or required to be closed in New York City.
Payment for the Shares to be purchased on the Closing Date
shall be made against delivery to the Underwriters for their respective accounts
of the Shares to be purchased on such date registered in such names and in such
denominations as the Underwriters shall request in writing not later than two
full Business Days prior to the Closing Date, with any transfer taxes payable in
connection with the transfer to the Underwriters of the Shares duly paid by the
Company. The certificates for the Shares will be made available for inspection
and packaging by the Underwriters at its office set forth above not later than
1:00 P.M., New York City time, on the Business Day prior to the Closing Date.
4. The Company represents and warrants to the Underwriters that:
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(a) the Company and the transactions contemplated by this
Agreement meet the requirements and conditions for using a registration
statement on Form S-3 under the Securities Act, and the Registration
Statement has been declared effective by the Commission; no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been instituted or, to
the knowledge of the Company, threatened by the Commission;
(b) on the effective date of the Registration Statement,
the Registration Statement conformed in all material respects to the
requirements of the Securities Act and the rules and regulations of the
Commission thereunder and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; the
Registration Statement, as of the date of this Agreement, conforms and,
as amended or supplemented, if applicable, will conform in all material
respects to the requirements of the Securities Act and the rules and
regulations on the Commission thereunder, and does not include and, as
amended or supplemented, if applicable, will not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; the Prospectus, as of the date of its filing,
and as amended or supplemented, if applicable, conforms or will conform
in all material respects to the requirements of the Securities Act and
the rules and regulations on the Commission thereunder and, as of the
date of its filing, did not or will not include, and as of the Closing
Date or as amended or supplemented, if applicable, will not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided that the foregoing representations and warranties
shall not apply to statements in or omissions from the Registration
Statement or the Prospectus made in reliance upon and in conformity
with information relating to the Underwriters furnished to the Company
in writing by the Underwriters expressly for use therein, it being
understood and agreed that the only such information is that described
as such in the second paragraph of Section 7 hereof;
(c) the documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the
Prospectus, when they became effective or at the time they were or
hereafter are filed with the Commission, conformed and will conform in
all material respects with the requirements of the Securities Act, the
Exchange Act or the rules and regulations of the Commission thereunder,
as applicable, and, when read together with the other information in
the Prospectus, at the time the Registration Statement became
effective, at the time the Prospectus was filed and on the Closing
Date, as the case may be, 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
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or necessary to make the statements therein, and with respect to the
Prospectus, in light of the circumstances under which they were made,
not misleading;
(d) the Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Delaware, with full corporate power and authority to own its properties
and conduct its business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified,
individually or in the aggregate, would not have a material adverse
effect on the financial condition, business, properties or results of
operations of the Company and its subsidiaries taken as a whole
("Material Adverse Effect");
(e) each subsidiary set forth on Schedule II hereto
(each, a "Significant Subsidiary") of the Company has been duly
incorporated or formed, as the case may be, and is an existing
corporation, limited liability company or limited partnership in good
standing under the laws of the jurisdiction of its incorporation or
formation, as the case may be, with power and authority (corporate or
other) to own its properties and conduct its business as described in
the Prospectus; and each such Significant Subsidiary is duly qualified
to do business as a foreign corporation, limited liability company or
limited partnership in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to be so
qualified, individually or in the aggregate, would not have a Material
Adverse Effect; all of the issued and outstanding equity interests of
each Significant Subsidiary have been duly authorized and validly
issued and are fully paid and nonassessable (other than the shares of
Series A Preferred Stock of El Paso Tennessee Pipeline Co.; and the
equity interests of each Significant Subsidiary owned by the Company,
directly or through subsidiaries, are owned free from liens, claims, or
adverse interests of any nature, other than 100% of the equity
interests of ANR Pipeline Company, El Paso Natural Gas Company and
Tennessee Gas Pipeline Company that are pledged pursuant to that
certain Security and Intercreditor Agreement dated as of April 16, 2003
among the Company and the other parties named therein (the "Security
Agreement");
(f) except for the registration of the Shares under the
Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange
Act and applicable state securities laws and rules and regulations of
the National Association of Securities Dealers, Inc. ("NASD") in
connection with the purchase and distribution of the Shares by the
Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency or
body is required for the execution, delivery and
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performance of this Agreement by the Company and the consummation of
the transactions contemplated hereby;
(g) the execution, delivery and performance of this
Agreement, and the issuance and sale of the Shares and compliance with
the terms and provisions thereof will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, (i) any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any Significant Subsidiary or any of
their properties, or (ii) any agreement or instrument to which the
Company or any such Significant Subsidiary is a party or by which the
Company or any such Significant Subsidiary is bound or to which any of
the properties of the Company or any Significant Subsidiary is subject,
or (iii) the charter or by-laws of the Company or any such Significant
Subsidiary, except in the case of clauses (i) and (ii), for any such
breach or violation which would not, individually or in the aggregate,
have a Material Adverse Effect; and the Company has full power and
authority to authorize, issue and sell the Shares as contemplated by
this Agreement;
(h) this Agreement has been duly authorized, executed and
delivered by the Company;
(i) the Shares to be issued and sold by the Company to
the Underwriters hereunder have been duly and validly authorized and,
when issued and delivered against payment therefor as provided herein,
will be duly and validly issued, fully paid and nonassessable and free
of any preemptive or similar rights and will conform to the description
thereof contained in the Company's Form 8-A/A, as amended, filed
pursuant to the Exchange Act and incorporated by reference in the
Prospectus;
(j) the Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued and outstanding shares
of capital stock of the Company, including the Shares, when issued and
delivered in accordance with this Agreement, have been duly and validly
authorized and issued, are fully paid and non-assessable and conform to
the description thereof contained in the Prospectus;
(k) neither the Company nor any Significant Subsidiary is
(i) in violation of its respective charter or by-laws or (ii) in
default in the performance of any obligation, agreement, covenant or
condition contained in any indenture, loan agreement, mortgage, lease
or other agreement or instrument that is material to the Company and
its subsidiaries, taken as a whole, to which the Company or any
Significant Subsidiary is a party or by which the Company or any
Significant Subsidiary or their respective property is bound, except in
the case of clause (ii) for any such default as would not, individually
or in the aggregate, have a Material Adverse Effect;
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(l) except as disclosed in the Prospectus and as provided
for in the Security Agreement, the Company and its Significant
Subsidiaries have good and indefeasible title to all real properties
and all other properties and assets owned by them, in each case free
from liens, encumbrances and defects that would materially affect the
value thereof or materially interfere with the use made or to be made
thereof by them; and except as disclosed in the Prospectus and as
provided for in the Security Agreement, the Company and its Significant
Subsidiaries hold any leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere
with the use made or to be made thereof by them.
(m) except as disclosed in the Prospectus, neither the
Company nor any of its Significant Subsidiaries is in violation of any
statute, any rule, regulation, decision or order of any governmental
agency or body or any court, domestic or foreign, relating to the use,
disposal or release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, "environmental laws"),
owns or operates any real property contaminated with any substance that
is subject to any environmental laws, is liable for any off-site
disposal or contamination pursuant to any environmental laws, or is
subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would, individually or in
the aggregate, have a Material Adverse Effect; and, except as disclosed
in the Prospectus, the Company is not aware of any pending
investigation which could reasonably be expected by the Company to lead
to such a claim;
(n) except as disclosed in the Prospectus and the
documents incorporated by reference therein, there are no pending
actions, suits or proceedings against or affecting the Company, any of
its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, or which are otherwise
material in the context of the sale of the Shares; and no such actions,
suits or proceedings are, to the Company's knowledge, threatened or
contemplated;
(o) the financial statements incorporated by reference in
the Registration Statement and the Prospectus present fairly the
consolidated financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations and
cash flows for the periods shown, and, except as otherwise disclosed in
the Prospectus, such consolidated financial statements have been
prepared in conformity with the generally accepted accounting
principles in the United States applied on a consistent basis; and the
schedules included in the Registration Statement present fairly the
information required to be stated therein; and the assumptions used
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in preparing the pro forma financial statements incorporated by
reference in the Registration Statement and the Prospectus provide a
reasonable basis for presenting the significant effects directly
attributable to the transactions or events described therein, the
related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical
financial statement amounts;
(p) except as disclosed in the Prospectus, since the date
of the latest audited financial statements incorporated by reference in
the Prospectus there has been no material adverse change, nor any
development or event involving a prospective material adverse change,
in the financial condition, business, properties or results of
operations of the Company and its subsidiaries taken as a whole, and,
except as disclosed in or contemplated by the Prospectus, there has
been no dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock, other than ordinary
dividends declared on the Company's Common Stock on April 29, 2003,
July 31, 2003 and October 30, 2003;
(q) no "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act has indicated to the Company that it is
considering (i) the downgrading, suspension or withdrawal of, or any
review for a possible change that does not indicate the direction of
the possible change in, any rating assigned to the Company or any
securities of the Company or (ii) any change in the outlook for any
rating of the Company or any securities of the Company;
(r) the Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus, will not be (i) an "investment
company" as defined in the Investment Company Act of 1940, as amended,
or (ii) a "holding company" within the meaning of, or subject to
regulation under, the Public Utility Holding Company Act of 1935, as
amended, and the rules and regulations promulgated by the Commission
thereunder;
(s) each of PricewaterhouseCoopers LLP and Deloitte &
Touche LLP, who have expressed their opinions on the audited financial
statements and related schedules included or incorporated by reference
in the Registration Statement and the Prospectus, are independent
public accountants as required by the Securities Act;
(t) the Company is subject to and in compliance with the
reporting requirements of Section 13 or Section 15(d) of the Exchange
Act. The Common Stock is registered pursuant to Section 12(b) of the
Exchange Act and is listed on The New York Stock Exchange, and the
Company has taken no action designed to, or likely to have the effect
of, terminating the registration of the Common Stock under the
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Exchange Act or delisting the Common Stock from The New York Stock
Exchange, nor has the Company received any notification that the
Commission or the NASD is contemplating terminating such registration
or listing; and the Shares have been approved for listing on The New
York Stock Exchange, subject to notice of issuance; and
(u) the Company has not distributed and, prior to the
later of (i) the Closing Date and (ii) the completion of the
distribution of the Shares, will not distribute any written offering
material in connection with the offering and sale of the Shares other
than the Registration Statement or any amendment thereto, or the
Prospectus or any amendment or supplement thereto, or other materials,
if any, permitted by the Securities Act.
5. The Company covenants and agrees with the Underwriters as
follows:
(a) to file the final Prospectus with the Commission
within the time period specified by Rule 424(b) under the Securities
Act and to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long
as the delivery of a prospectus is required in connection with the
offering or sale of the Shares; and to furnish copies of the Prospectus
to the Underwriters in New York City prior to 10:00 a.m., New York City
time, on the Business Day next succeeding the date of this Agreement in
such quantities as the Underwriters may reasonably request;
(b) to deliver, at the expense of the Company, to the
Underwriters signed copies of the Registration Statement (as originally
filed) and each amendment thereto, in each case including exhibits and
documents incorporated by reference therein, and as many copies of the
Prospectus (including all amendments and supplements thereto) and
documents incorporated by reference therein as the Underwriters may
reasonably request;
(c) before filing any amendment or supplement to the
Registration Statement or the Prospectus during the Distribution Period
to furnish to the Underwriters a copy of the proposed amendment or
supplement for review and not to file any such proposed amendment or
supplement to which the Underwriters reasonably and timely object;
(d) to advise the Underwriters promptly, and to confirm
such advice in writing, (i) when any amendment to the Registration
Statement has been filed or becomes effective, (ii) when any supplement
to the Prospectus or any amended Prospectus has been filed and to
furnish the Underwriters with copies thereof, (iii) of
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any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for any
additional information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or of any order preventing or suspending the use of the Prospectus or
any supplemental prospectus or the initiation or, to the Company's
knowledge, threatening of any proceeding for that purpose, (v) of the
occurrence of any event, as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading, and (vi) of the receipt by
the Company of any notification with respect to any suspension of the
registration or qualification of the Shares for offer and sale in any
jurisdiction or the initiation or, to the Company's knowledge,
threatening of any proceeding for such purpose, and to use its
commercially reasonable efforts to prevent the issuance of any such
stop order, or of any order preventing or suspending the use of the
Prospectus or any supplemental prospectus, or of any order suspending
any such registration or qualification of the Shares, or notification
of any such order thereof and, if issued, to obtain as soon as possible
the withdrawal thereof;
(e) if, during such period of time after the first date
of the public offering of the Shares a prospectus relating to the
Shares is required by law to be delivered in connection with sales by
the Underwriters or any dealer (the "Distribution Period"), any event
shall occur as a result of which it is necessary for the Underwriters
to amend or supplement the Prospectus in order to make the statements
therein, in light of the circumstances when the Prospectus is delivered
to a purchaser, not misleading, or if it is necessary for the
Underwriters to amend or supplement the Prospectus to comply with
applicable law, the Company shall use its commercially reasonable
efforts forthwith to prepare and furnish, at the expense of the
Company, to the Underwriters and to the dealers (whose names and
addresses the Underwriters will furnish to the Company) to which Shares
may have been sold by the Underwriters and to any other dealers upon
request, such amendments or supplements to the Prospectus as may be
necessary so that the statements in the Prospectus as so amended or
supplemented will not, in light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law; neither the Underwriters' consent to,
nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section
6 hereof;
(f) to endeavor to register or qualify the Shares for
offer and sale under the securities or blue sky laws of such
jurisdictions as the Underwriters shall reasonably request and to
continue such registration or qualification in effect so long as
reasonably required for distribution of the Shares; provided that the
Company shall not
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be required to file a general consent to service of process in any such
jurisdiction or to qualify as a foreign corporation in any jurisdiction
in which it is not so qualified;
(g) to make generally available to its security holders
and to the Underwriters as soon as practicable an earnings statement
covering a period of at least twelve months beginning not later than
the first fiscal quarter of the Company occurring after the date
hereof, which shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 promulgated thereunder;
(h) during the period when the Prospectus is required to
be delivered under the Securities Act or the Exchange Act in connection
with sales of the Securities, to file all documents required to be
filed by it with the Commission pursuant to Section 13, 14 or 15 of the
Exchange Act within the time periods required by the Exchange Act;
(i) for a period of 90 days from the date of the initial
public offering of the Shares not to directly or indirectly (i) offer,
pledge, announce the intention to sell, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, or otherwise
transfer or dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act relating to, any
shares of Common Stock, or any securities of the Company which are
substantially similar to the Common Stock, or (ii) enter into any swap,
option, future, forward or other agreement that transfers, in whole or
in part, any of the economic consequences of ownership of the Common
Stock, whether any such transaction described in clause (i) or (ii)
above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise without the prior written consent of
the Underwriters, which shall not be unreasonably withheld, other than
(i) the Shares to be sold hereunder, (ii) shares of Common Stock to be
issued by the Company pursuant to the terms of that certain Master
Settlement Agreement dated as of June 24, 2003, among the Company and
the other parties named therein, as may be amended from time to time,
(iii) any shares of Common Stock of the Company issued upon the
conversion of any convertible debentures, convertible preferred stock
or other convertible securities or the exercise of options, warrants
and rights, in each case, outstanding on the date of the Prospectus,
(iv) the issuance of shares of Common Stock in connection with the
Company's offer to exchange its outstanding 9% Equity Security Units,
(v) stock issued upon the exercise of options granted or under existing
employee stock purchase plans, or the grant of stock options and
restricted stock under the Company's employee equity plans or (vi)
shares issued under the Company's direct stock purchase and dividend
reinvestment plan or (vii) shares of Common Stock held by the El Paso
Corporation Pension Plan which may be sold by that Plan;
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(j) to use the net proceeds received by the Company from
the sale of the Shares pursuant to this Agreement in the manner
specified in the Prospectus under the caption "Use of Proceeds"; and
(k) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all reasonable costs and expenses incident to the
performance of its obligations hereunder, including without limiting
the generality of the foregoing, all costs and expenses (i) incident to
the preparation, issuance, execution and delivery of the Shares, (ii)
incident to the preparation, printing and filing under the Securities
Act of the Registration Statement, the Prospectus and any supplemental
prospectus (including in each case all exhibits, amendments and
supplements thereto), (iii) incurred in connection with the
registration or qualification of the Shares under the securities or
blue sky laws of such jurisdictions in the United States as the
Underwriters may reasonably designate (including fees of counsel for
the Underwriters and its disbursements), (iv) in connection with the
listing of the Shares on The New York Stock Exchange, (v) expenses
related to any filing with the NASD, (vi) in connection with the
printing (including word processing and duplication costs) and delivery
of this Agreement, any blue sky survey and the furnishing to the
Underwriters and dealers of copies of the Registration Statement and
the Prospectus, including mailing and shipping, as herein provided,
(vii) any expenses incurred by the Company in connection with a "road
show" presentation to potential investors, (viii) the cost of preparing
stock certificates and (ix) the cost and charges of any transfer agent
and any registrar provided that, except as otherwise provided herein,
the Underwriters shall pay their own costs and expenses including the
fees and expenses of their counsel and any transfer taxes on the Shares
which they may sell and the expenses of advertising any offering of the
Shares made by the Underwriters.
6. The obligations of the Underwriters hereunder to purchase the
Shares on the Closing Date are subject to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment shall be in
effect, and no proceedings for such purpose shall be pending before or
threatened by the Commission; the Prospectus shall have been filed with
the Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the rules and regulations under
the Securities Act and in accordance with Section 5(a) hereof; and all
requests for additional information shall have been complied with to
the satisfaction of the Underwriters;
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(b) the representations and warranties of the Company
contained herein are true and correct on and as of the Closing Date as
if made on and as of the Closing Date and the Company shall have
complied with all agreements and all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date;
(c) subsequent to the execution and delivery of this
Agreement and prior to the Closing Date there shall not have occurred
any downgrading, nor shall any notice have been given of (i) any
downgrading, (ii) any intended or potential downgrading or (iii) any
review or possible change that does not indicate an improvement, in the
rating accorded any securities of or guaranteed by the Company by any
"nationally recognized statistical rating organization", as such term
is defined for purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is
given in the Prospectus there shall not have been any change in the
capital stock or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
financial condition, business, properties or results of operations of
the Company and its subsidiaries, taken as a whole, otherwise than as
set forth or contemplated in the Prospectus, the effect of which in the
sole judgment of the Underwriters, makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares on the Closing Date on the terms and in the manner contemplated
in the Prospectus; and neither the Company nor any of its subsidiaries
has sustained since the date of the latest audited financial statements
included or incorporated by REFERENCE in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus;
(e) the Underwriters shall have received on and as of the
Closing Date a certificate of an executive officer of the Company, with
specific knowledge about the Company's financial matters, satisfactory
to the Underwriters to the effect set forth in subsections (a) through
(d) of this Section and to the further effect that there has not
occurred any material adverse change, or any development involving a
prospective material adverse change, in or affecting the financial
condition, business, properties or results of operations of the Company
and its subsidiaries taken as a whole from that set forth or
contemplated in the Registration Statement;
(f) ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company,
shall have furnished to the Underwriters their written opinion, dated
the Closing Date in form and substance satisfactory to the
Underwriters, to the effect that:
-12-
(i) the Shares have been duly authorized and are
validly issued, fully paid and non-assessable; and the
authorized capital stock of the Company conform, as to legal
matters, in all material respects to the description thereof
contained in the Company's Form 8-A/A, as amended, filed
pursuant to the Exchange Act and incorporated by reference in
the Prospectus;
(ii) no consent, approval, authorization or order
of, or filing with, any governmental agency or body or any
court is required for the consummation of the transactions
contemplated by this Agreement in connection with the issuance
or sale of the Shares by the Company, except such as have been
obtained and made under the Securities Act and such as may be
required under state securities laws, as to which such counsel
need not opine;
(iii) the execution and delivery by the Company
of, and the performance by the Company of its obligations
under, this Agreement, and the issuance and sale by the
Company of the Shares will not violate (i) any provision of
applicable United States federal law, New York law or Delaware
General Corporation Law, or (ii) the Certificate of
Incorporation or Bylaws of the Company, and the Company has
full power and authority to authorize, issue and sell the
Shares as contemplated by this Agreement;
(iv) the Registration Statement has become
effective under the Securities Act, the Prospectus was filed
with the Commission pursuant to Rule 424(b) of the rules and
regulations of the Commission thereunder, and to such
counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement or any part
thereof has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the
Securities Act, and the Registration Statement, as of its
effective date, and the Prospectus, as of the date of this
Agreement, and any amendment or supplement thereto, as of its
date, complied as to form in all material respects with the
requirements of the Securities Act and the rules and
regulations of the Commission thereunder; the descriptions in
the Registration Statement and Prospectus of statutes, legal
and governmental proceedings and contracts and other documents
are accurate in all material respects and fairly present in
all material respects the information required to be shown;
and such counsel does not know of any legal or governmental
proceedings required to be described in the Prospectus which
are not described as required or of any contracts or documents
of a character required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as
required, it being understood that such counsel need not
express an opinion as to the financial statements and
schedules or other financial data contained in the
Registration Statement or the Prospectus;
-13-
(v) each document, if any, filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus
(except for financial statements and schedules and other
financial data included or incorporated by reference therein
or omitted therefrom, as to which such counsel need not
express an opinion) appeared on its face to be appropriately
responsive in all material respects with the Exchange Act; and
the Registration Statement and Prospectus (except for
financial statements and schedules and other financial data
included or incorporated by reference therein or omitted
therefrom, as to which such counsel need not express an
opinion) appeared on their face to be appropriately responsive
in all material respects with the requirements of the
Securities Act;
(vi) this Agreement has been duly authorized,
executed and delivered by the Company; and
(vii) the Company is not and, after giving effect
to the offering and sale of the Shares and the application of
the proceeds thereof as described in the Prospectus, will not
be, (i) an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended, or (ii) a "holding
company" within the meaning of, or subject to regulation
under, the Public Utility Holding Company Act of 1935, as
amended, and the rules and regulations promulgated by the
Commission thereunder.
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws other than the laws of the
United States and the States of Delaware, New York and Texas, to the
extent such counsel deems proper and to the extent specified in such
opinion, if at all, upon an opinion or opinions (in form and substance
reasonably satisfactory to Underwriters' counsel) of other counsel
reasonably acceptable to the Underwriters' counsel, familiar with the
applicable laws; and (B) as to matters of fact, to the extent such
counsel deems proper, on certificates of responsible officers of the
Company and certificates or other written statements of officials of
jurisdictions having custody of documents respecting the corporate
existence or good standing of the Company. The opinion of such counsel
for the Company shall state that the opinion of any such other counsel
upon which they relied is in form satisfactory to such counsel and, in
such counsel's opinion, the Underwriters and it is justified in relying
thereon.
In addition, such counsel shall state that in the course of
the preparation by the Company of the Registration Statement and the
Prospectus (including the documents incorporated by reference therein),
such counsel has participated in conferences with certain of the
officers and representatives of the Company, the Company's independent
accountants, the Underwriters and counsel for the Underwriters at which
the Registration Statement and the Prospectus were discussed. Between
the date of
-14-
effectiveness of the Registration Statement and the Closing Date, such
counsel participated in additional conferences with certain officers
and representatives of the Company, the Company's independent
accountants, the Underwriters and counsel for the Underwriters at which
portions of the Registration Statement and the Prospectus were
discussed. Such counsel need not pass upon and or assume any
responsibility for the accuracy, completeness or fairness of the
statements contained or incorporated by reference in the Registration
Statement or the Prospectus nor make an independent check or
verification thereof, except as specifically described in the opinion
in paragraphs (iv) and (v) above. Such counsel shall further state
that, subject to the foregoing, no facts have come to such counsel's
attention that have caused them to believe that the Registration
Statement, at the time it became effective, contained or incorporated
by reference any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, or that
Prospectus, as of its date, contained or incorporated by reference any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Also, subject
to the foregoing, such counsel shall state that no facts have come to
such counsel's attention in the course of the proceedings described in
the first and second sentences of this paragraph that caused them to
believe that the Prospectus as of the Closing Date contains or
incorporates by reference any untrue statement of a material fact or
omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading. Such counsel need express no belief, however,
with respect to financial statements, schedules or notes thereto or
other financial data included or incorporated by reference in or
omitted from the Registration Statement or Prospectus.
The opinion of ▇▇▇▇▇ Liddell & ▇▇▇▇ LLP described above shall
be rendered to the Underwriters at the request of the Company and shall
so state therein;
(g) ▇▇▇▇▇▇ ▇. ▇▇▇▇, Associate General Counsel for the
Company, shall have furnished to the Underwriters his written opinion,
dated the Closing Date in form and substance satisfactory to the
Underwriters, to the effect that:
(i) each of the Company and its Significant
Subsidiaries has been duly incorporated, is validly existing
as a corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus, and each
is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of
property requires such qualification, except where the failure
to be so qualified or to be in good stand-
-15-
ing, individually or in the aggregate, would not have a
material adverse effect on the business, properties, financial
condition or results of operations of the Company and its
subsidiaries, taken as a whole;
(ii) the execution, delivery and performance of
this Agreement, the compliance by the Company with all the
provisions hereof and the consummation of the transactions
contemplated hereby and thereby will not, to such counsel's
knowledge, (A) violate any indenture, loan agreement,
mortgage, lease or other agreement or instrument to which the
Company or any Significant Subsidiary is a party or by which
the Company or any subsidiary or their respective property is
bound or (B) violate or conflict with any judgment, order or
decree of any court or any governmental body or agency having
jurisdiction over the Company, any subsidiary or their
respective property, except in each case, for such violations
as would not have a material adverse effect on the business,
properties, financial condition or results of operation of the
Company and its subsidiaries, taken as a whole;
(iii) to such counsel's knowledge after due
inquiry, there are no legal or governmental proceedings
required to be described in the Prospectus which are not
described as required or of any contracts or documents of a
character required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as
required; it being understood that such counsel need express
no opinion as to the financial statements or schedules or
other financial data contained in the Registration Statement
or the Prospectus;
(iv) the statements under (A) the caption "Item 3
- Legal Proceedings" of the Company's most recent annual
report on Form 10-K incorporated by reference into the
Prospectus and (B) the caption "Item 1 - Legal Proceedings" of
Part II of the Company's quarterly reports on Form 10-Q filed
since such annual report, in each case insofar as such
statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly present
as of the date of the applicable report the information
disclosed therein in all material respects; and
(v) (A) the execution and delivery by the
Company of, and the performance by the Company of its
obligations under, this Agreement will not violate any
provisions of any applicable laws and regulations specifically
governing the generation, transportation, distribution or
delivery of natural gas, oil, electricity or other related
commodities or services, including pipelines, transmission
lines, storage facilities and related facilities and
equipment, or the import or export of such commodities or
services (collectively, the "Energy In-
-16-
dustry") and (B) no consent, approval, authorization or order
of or qualification with any United States federal body or
agency specifically regulating the Energy Industry is required
for the performance by the Company of its obligations under
this Agreement, except in each of the foregoing cases for such
violations or failures to obtain such consent, approval,
authorization, order or qualification as would not have a
material adverse effect on the business, properties, financial
condition or results of operation of the Company and its
subsidiaries, taken as a whole.
The opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇ described above shall be
rendered to the Underwriters at the request of the Company and shall so
state therein;
(h) on the Closing Date, each of PricewaterhouseCoopers
LLP and Deloitte & Touche LLP shall have furnished to the Underwriters
letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you, containing statements and information of
the type customarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus;
(i) the Underwriters shall have received on and as of the
Closing Date an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP counsel to the
Underwriters, with respect to the due authorization and valid issuance
of the Shares, the Registration Statement, the Prospectus and other
related matters as the Underwriters may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(j) the "lock-up" agreements, each substantially in the
form of Exhibit A hereto, between you on the one hand and each of the
executive officers and directors of the Company, on the other hand,
relating to sales and certain other dispositions of shares of Common
Stock or certain other securities, delivered to you on or before the
date hereof, shall be in full force and effect on the Closing Date; and
(k) on or prior to the Closing Date the Company shall
have furnished to the Underwriters such further certificates and
documents as they shall reasonably request.
7. The Company agrees to indemnify and hold harmless each
Underwriter, each affiliate of any Underwriter which assists the Underwriters in
the distribution of the Shares and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, the legal fees and other
expenses reasonably incurred in connection with any suit, action or proceeding
or any claim asserted as such expenses are incurred) insofar as such losses,
claims, damages or liabilities
-17-
are (i) caused by any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the Prospectus (the term
Prospectus for the purpose of this Section 7 being deemed to include the
Prospectus and the Prospectus as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or (ii) caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
provided in any case that the Company shall not be liable to the extent that
such losses, claims, damages or liabilities are caused by any untrue statement
or omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to any Underwriter furnished to the Company
in writing by the Underwriters expressly for use therein, it being understood
and agreed that the only such information furnished by any Underwriter consists
of the information described as such in the paragraph below.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to each Underwriter,
but only with reference to information relating to such Underwriter furnished to
the Company in writing by such Underwriter expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement thereto, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the following information in the Prospectus furnished on
behalf of each Underwriter: the table in the first paragraph, the concession and
reallowance figures and the last sentence in the fourth paragraph, the sixth
paragraph, the seventh paragraph (other than the last sentence),and the eighth
paragraph under the caption "Underwriting."
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the
reasonable fees and expenses of such counsel related to such proceeding. In any
such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless (i) the Indemnifying Person and the Indemnified
Person shall have mutually agreed to the contrary, (ii) the Indemnifying Person
has failed within a reasonable time to retain counsel reasonably satisfactory to
the Indemnified Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel
-18-
would be inappropriate due to actual or potential differing interests between
them. It is understood that the Indemnifying Person shall not, in connection
with any proceeding or related proceeding in the same jurisdiction, be liable
for the reasonable fees and expenses of more than one separate firm (in addition
to any local counsel) for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such separate firm for
the Underwriters, each affiliate of the Underwriters which assists the
Underwriters in the distribution of the Shares and such control persons of the
Underwriters shall be designated in writing by the Underwriters and any such
separate firm for the Company, its directors, its officers who sign the
Registration Statement and such control persons of the Company shall be
designated in writing by the Company. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff in any such action, the Indemnifying Person agrees to indemnify
and hold harmless any Indemnified Person from and against any loss or liability
by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have requested an
Indemnifying Person to reimburse the Indemnified Person for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the prior written consent of
the Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such
proceeding.
If the indemnification provided for in the first or second
paragraphs of this Section 7 is unavailable to an Indemnified Person or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (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 Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, 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 shall be
deemed to be in the same respective proportions as the net proceeds
-19-
from the offering (before deducting expenses) received by the Company and the
total underwriting discounts received by the Underwriters, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate public
offering price of the Shares. 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 the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall any
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Shares underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this paragraph to contribute are several in proportion to their underwriting
obligations and not joint.
The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Company set forth in
this Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of the Underwriters or any person controlling the Underwriters or by or
on behalf of the Company, its officers or directors or any other person
controlling the Company and (iii) acceptance of and payment for any of the
Shares.
8. Notwithstanding anything herein contained, this Agreement may
be terminated in the absolute discretion of the Underwriters, by notice given by
the Underwriters to the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange or the American Stock Exchange or the Nasdaq
-20-
National Market, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) any change in
U.S. or international financial, political or economic conditions or currency
exchange rates or exchange controls as would in the sole judgment of the
Underwriters, be likely to prejudice materially the success of the proposed
issue, sale or distribution of the Shares, whether in the primary market or in
respect of dealings in the secondary market, (iv) a general moratorium on
commercial banking activities in New York shall have been declared by either
federal or New York State authorities, or if there has been a material
disruption in securities settlement or clearance services in the United States,
or (iv) there shall have occurred any outbreak or escalation of hostilities or
any change in financial markets or any calamity or crisis that, in the sole
judgment of the Underwriters, is material and adverse and which, in the sole
judgment of the Underwriters, makes it impracticable or inadvisable to market
the Shares being delivered at the Closing Date on the terms and in the manner
contemplated in the Prospectus.
9. This Agreement shall become effective upon execution and
delivery hereof by the parties hereto.
10. If any Underwriter defaults in its obligations to purchase
Shares hereunder on the Closing Date and the aggregate principal amount of
Shares that such defaulting Underwriter agreed but failed to purchase does not
exceed 10% of the total principal amount of Shares that the Underwriters are
obligated to purchase on such Closing Date, the non-defaulting Underwriter may
make arrangements satisfactory to the Company for the purchase of such Shares by
other persons, including such non-defaulting Underwriter, but if no such
arrangements are made by such Closing Date, the non-defaulting Underwriter shall
be obligated to purchase the Shares that such defaulting Underwriter agreed but
failed to purchase on such Closing Date. If any Underwriter so defaults and the
aggregate principal amount of Shares with respect to which such default occurs
exceeds 10% of the total principal amount of Shares that the Underwriters are
obligated to purchase on such Closing Date and arrangements satisfactory to the
non-defaulting Underwriter and the Company for the purchase of such Shares by
other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of such non-defaulting Underwriter
or the Company. As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default.
11. If this Agreement shall be terminated by the Underwriters
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot be fulfilled,
the Company agrees to reimburse the Underwriters for all out-of-pocket expenses
(including the fees and expenses of its counsel) reasonably incurred by the
Underwriters in
-21-
connection with this Agreement or the offering contemplated hereunder and upon
demand the Company shall pay the full amount thereof to the Underwriters.
12. This Agreement shall inure to the benefit of and be binding
upon the Company, the Underwriters, each affiliate of the Underwriters which
assists the Underwriters in the distribution of the Shares, directors and
officers of the Company any controlling persons referred to herein and their
respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. No purchaser of Shares from
the Underwriters shall be deemed to be a successor by reason merely of such
purchase.
13. 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
given to ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(telefax: 212-648-5552); Attention: Syndicate Department and to Deutsche Bank
Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention: Syndicate
Manager (telefax: ▇▇▇ ▇▇▇ ▇▇▇▇). Notices to the Company shall be given to it at
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇; Attention: Legal Department
(telefax: 713-420-4099).
14. This Agreement may be signed in counterparts, each of which
shall be an original and all of which together shall constitute one and the same
instrument.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAWS PROVISIONS THEREOF.
16. The Company hereby submits to the non-exclusive jurisdiction
of the Federal and state courts in the Borough of Manhattan in The City of New
York in any suit or proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby.
17. The invalidity or unenforceability of any Section, paragraph
or provision of this Agreement shall not affect the validity or enforceability
of any other Section, paragraph or provision hereof. If any Section, paragraph
or provision of this Agreement is for any reason determined to be invalid or
unenforceable, there shall be deemed to be made such minor changes (and only
such minor changes) as are necessary to make it valid and enforceable.
18. This Agreement constitutes the entire agreement of the parties
to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof. In this Agreement,
-22-
the masculine, feminine and neuter genders and the singular and plural include
one another. This Agreement may be amended or modified, and the observance of
any term of this Agreement may be waived, only by a writing signed by the
Company and the Underwriters.
-23-
If the foregoing is in accordance with your understanding,
please sign and return five counterparts hereof.
Very truly yours,
EL PASO CORPORATION
By: /s/ D. ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: D. ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
Accepted as of the date first written above:
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
DEUTSCHE BANK SECURITIES INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President - Energy, Utilities and Chemicals
-24-
SCHEDULE I
Number of
Underwriter Underwritten Shares
----------- -------------------
▇.▇. ▇▇▇▇▇▇ Securities Inc.................................... 4,395,218
Deutsche Bank Securities Inc.................................. 4,395,218
---------
Total................................................ 8,790,436
=========
SCHEDULE II
Significant Subsidiaries
El Paso Natural Gas Company
El Paso Tennessee Pipeline Co.
Southern Natural Gas Company
El Paso Production Holding Company
El Paso CGP Company
Tennessee Gas Pipeline Company
ANR Pipeline Company
EXHIBIT A
[Form of Lock-Up Agreement]
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Deutsche Bank Securities Inc.
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On behalf of the Underwriters
named in Schedule I to the Underwriting Agreement
Re: El Paso Corporation - Common Stock Offering
Ladies and Gentlemen:
The undersigned understands that you have entered into an
Underwriting Agreement (the "Underwriting Agreement") with El Paso Corporation,
a Delaware corporation (the "Company"), providing for the public offering (the
"Public Offering") by you (the "Underwriters") of Common Stock, par value $3.00
per share (the "Common Stock"), of the Company. Capitalized terms used herein
and not otherwise defined shall have the meanings set forth in the Underwriting
Agreement.
In consideration of your agreement to purchase and make the
Public Offering of the Common Stock, and for other good and valuable
consideration receipt of which is hereby acknowledged, the undersigned hereby
agrees that, without your prior written consent, which shall not be unreasonably
withheld, the undersigned will not, for so long as the undersigned is an officer
or director of the Company and during the period (the "Lock-Up Period") ending
45 days after the date of the prospectus relating to the Public Offering (the
"Prospectus"), (1) offer, pledge, announce the intention to sell, sell, contract
to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase, or otherwise
transfer or dispose of, directly or indirectly, or publicly disclose the
intention to do any of the foregoing, any shares of Common Stock of the Company
or any securities convertible into or exercisable or exchangeable for Common
Stock (including, but not limited to, Common Stock which may be deemed to be
beneficially owned by the undersigned in accordance with the rules and
regulations of the Securities and Exchange Commission and securities which may
be issued upon exercise of a stock option or warrant) other than (A) as a
bona fide gift or bona fide gifts, provided, however, that the recipient of such
bona fide gift or bona fide gifts shall execute a copy of and be bound by the
terms of, this Agreement prior to such transfer or (B) the sale of any shares of
Common Stock acquired upon the exercise of options granted under the Company's
stock option or stock incentive plans that would otherwise expire during the
Lock-Up Period or (C) the adoption of a written plan for trading securities
consistent with Rule 10b5-1 of the Securities Exchange Act of 1934, as amended,
as long as any sales under such written plan occur after the Lock-Up Period or
(2) enter into any swap, option, future, forward or other agreement that
transfers, in whole or in part, any of the economic consequences of ownership of
the Common Stock or any securities of the Company which are substantially
similar to the Common Stock, including, but not limited to, any security
convertible into or exercisable or exchangeable for Common Stock, whether any
such transaction described in clause (1) or (2) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise. In
addition, the undersigned agrees that, without the prior written consent of the
Underwriters, which shall not be unreasonably withheld, it will not, during the
period ending 45 days after the date of the Prospectus, make any demand for or
exercise any right with respect to, the registration of any shares of Common
Stock or any security convertible into or exercisable or exchangeable for Common
Stock.
In furtherance of the foregoing, the Company and any duly
appointed transfer agent for the registration or transfer of the securities
described herein are hereby authorized to decline to make any transfer of
securities if such transfer would constitute a violation or breach of this
Lock-Up Agreement.
The undersigned hereby represents and warrants that the
undersigned has full power and authority to enter into this Lock-Up Agreement.
All authority herein conferred or agreed to be conferred and any obligations of
the undersigned shall be binding upon the successors, assigns, heirs or personal
representatives of the undersigned.
The undersigned understands that, if the Underwriting
Agreement (other than the provisions thereof which survive termination) shall
terminate or be terminated prior to payment for and delivery of the Common Stock
to be sold thereunder, this Lock-Up Agreement shall terminate and be of no
further force or effect, and the undersigned shall be released from all
obligations under this Lock-Up Agreement.
The undersigned understands that the Underwriters propose to
proceed with the Public Offering in reliance upon this Lock-Up Agreement.
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THIS LOCK-UP AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAWS PROVISIONS THEREOF.
Very truly yours,
By: __________________________________
Name:
Title:
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