1
Exhibit 1
$7,000,000 Principal Amount of
___% Debentures due 2027 and
620,000 Shares of Common Stock
of
VALLEY RESOURCES, INC.
UNDERWRITING AGREEMENT
August __, 1997
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P.
As Representative of the several
Underwriters named in Schedule I
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
Valley Resources, Inc., a Rhode Island corporation (the "Company"),
confirms its agreement with the Underwriters, acting severally and not jointly,
listed in Schedule I hereto (the "Underwriters") as follows:
Description of Debentures and Shares. The Company proposes to issue and
sell to the Underwriters $7,000,000 principal amount of ___% Debentures due 2027
(the "Debentures") described in the Indenture (as defined below) and 620,000
shares of the common stock, par value $1.00 per share ("Common Stock") of the
Company (such 620,000 shares are hereinafter sometimes referred to as the "Firm
Shares") in the aggregate principal amount and aggregate number of shares
specified in Schedule I. In addition, solely for the purpose of covering
over-allotments, the Company proposes to grant the Underwriters the option to
purchase up to an additional 93,000 shares of Common Stock (the "Option
Shares"). The Firm Shares and the Option Shares are hereinafter sometimes
referred to collectively as the "Shares." The Debentures and Shares are more
fully described in the Registration Statement and Prospectus hereinafter
defined. The Debentures will be issued by the Company under its Indenture dated
as of ____________, 1997 (the "Indenture") between the Company and Mellon Bank,
N.A., as trustee (the "Trustee"). No amendments to the Indenture will be made
prior to the Closing Date hereinafter referred to without your prior approval.
1
2
Representations and Warranties of the Company. The Company represents,
warrants and agrees that:
The Company meets the requirements for use of Form S-2 under the
Securities Act of 1933, as amended (the "Act"), and has prepared and filed
with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S2 (Registration Statement No. 333-_____)
relating to $7,000,000 aggregate principal amount of its Debentures and
713,000 of its Shares, and the offering thereof in accordance with the Act
and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act")
and has filed such amendments thereto as may have been required to the date
hereof. The registration statement has been prepared in conformity with the
requirements of the Act and the rules and regulations thereunder (the
"Rules and Regulations") and the Trust Indenture Act and the rules and
regulations thereunder. Copies of that registration statement as amended to
date have been delivered by the Company to you as the Underwriters. As
used in this Agreement, "Preliminary Prospectus" means each prospectus
included in that registration statement, or amendments of such registration
statement or prospectus, before that registration statement, as so amended,
became effective under the Act and any prospectus filed by the Company with
the consent of the Underwriters pursuant to Rule 424(a) of the Rules and
Regulations and the documents incorporated by reference in such preliminary
prospectus. "Registration Statement" means that registration statement
including the prospectus, exhibits and financial statements, and all
documents incorporated by reference therein, including any information
deemed by virtue of Rule 430A(a)(3) of the Rules and Regulations to be part
of such Registration Statement, as of the time such registration statement
or posteffective amendment became effective under the Act and the Trust
Indenture Act; and "Prospectus" means the prospectus filed with the
Commission by the Company with the consent of the Underwriters pursuant to
Rule 424(b) of the Rules and Regulations, unless no such Rule 424(b)
Prospectus is filed, in which case it shall mean the Prospectus filed as
part of the last Registration Statement filed on or before the effective
date thereof, and the documents incorporated by reference therein. The
Commission has not issued any order preventing or suspending the use of any
Preliminary Prospectus.
Each Preliminary Prospectus, at the time of the filing thereof, did
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which made, not
misleading; provided that no representation or warranty is made as to
information contained in or omitted from any Preliminary Prospectus in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of the Underwriters specifically for inclusion
therein. The Registration Statement has been declared effective by the
Commission.
The Registration Statement and the Prospectus, at the time the
Registration Statement became effective, complied, as of the date hereof
comply and as of the Closing Date, as hereinafter defined, will comply, in
all material respects with the requirements of the Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and the Trust
Indenture Act and the rules and regulations of the
2
3
Commission under such Acts; the Registration Statement and any amendment
thereof, at the time it became effective, did 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; and the Prospectus, at the time the Registration Statement
became effective did not, as of the date hereof does not and as of the
Closing Date will not, contain 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; provided, however, that the representations and warranties in
this Paragraph shall not apply to (A) that part of the Registration
Statement which constitutes the Statement of Eligibility and Qualification
(Form T1) of the Trustee under the Trust Indenture Act or (B) statements in
or omissions from the Registration Statement or the Prospectus made in
reliance upon and in conformity with information furnished to the Company
in writing by the Underwriters expressly for use in the Registration
Statement or the Prospectus.
The documents incorporated by reference into the Prospectus pursuant
to Item 12 of Form S-2 under the Act, at the time they were filed with the
Commission, complied in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder
(the "Exchange Act Rules and Regulations").
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, the accountants whose report appears in the
Prospectus, are independent public accountants as required by the Act and
the Rules and Regulations.
The consolidated financial statements of the Company and its
subsidiaries filed as part of the Registration Statement or included in any
Preliminary Prospectus or the Prospectus present fairly, and the financial
statements included in any amendment or supplement to the Prospectus will
present fairly, the financial condition and results of operations of the
Company and its subsidiaries, at the dates and for the periods indicated,
and have been, and in the case of financial statements included in any
amendment or supplement to the Prospectus will be, prepared in conformity
with generally accepted accounting principles applied on a consistent basis
throughout the periods involved. No other financial statements are required
to be set forth in the Registration Statement or the Prospectus under the
Act or the Rules and Regulations thereunder.
Except as described in or contemplated by the Registration Statement
and the Prospectus, subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
neither the Company nor any of its subsidiaries (as defined in Paragraph )
has incurred any material liability or obligation, direct or contingent, or
entered into any material transaction, whether or not in the ordinary
course of business, and there has not been any material change on a
consolidated basis in the Company's capital stock, or any material increase
in the longterm debt of the Company or any of its subsidiaries, or any
issuance of options, warrants, convertible securities or other rights to
purchase capital stock of such entity, or any material adverse change in,
or any adverse development which materially
3
4
affects, the business, properties, financial condition, results of
operations, or prospects of the Company and its subsidiaries taken as a
whole.
Each of the Company and its subsidiaries has been duly incorporated,
is validly existing and in good standing under the laws of its jurisdiction
of incorporation, and the Company and each of its subsidiaries are duly
qualified to do business and in good standing as foreign corporations in
each jurisdiction in which their respective ownership of property or the
conduct of their respective businesses requires such qualification and
wherein the failure to be so qualified would have a material adverse effect
on the business of the Company and each of its subsidiaries, and have all
power and authority necessary to own or hold its properties and to conduct
the business in which it is engaged. All outstanding shares of capital
stock of the subsidiaries of the Company are owned directly or indirectly
by the Company and are validly authorized, issued and outstanding, fully
paid and non-assessable with no personal liability attaching to the
ownership thereof, and all of such shares are owned free and clear of any
lien, pledge or encumbrance or any claim of any third party.
The authorized and outstanding capitalization of the Company as of May
31, 1997 was as set forth in the Registration Statement and the Prospectus,
and there have been no changes in the authorized or outstanding
capitalization of the Company since May 31, 1997 except as contemplated by
the Registration Statement and the Prospectus. All corporate action
required to have been taken by the Company for the due and proper
authorization, execution and delivery of the Indenture and the due and
proper authorization, issuance, sale and delivery of the Debentures and the
Shares have been validly and sufficiently taken. When the Debentures and
the Shares have been executed, issued, delivered and paid for in the manner
herein described, the Debentures will be duly issued and will constitute
valid and legally binding obligations of the Company entitled to the
benefits provided by the Indenture, and the Debentures will be enforceable
in accordance with their terms (except insofar as enforcement may be
limited by applicable bankruptcy, reorganization, insolvency or other laws
affecting creditors' rights and remedies generally, as may from time to
time be in effect, and by the availability of specific performance or of
other equitable relief which is subject to the discretion of the court
before which any proceeding may be brought) and the Shares will be fully
paid, duly issued and non-assessable; the Debentures and the Shares conform
to all statements relating thereto in the Registration Statement, and
holders of neither the Debentures nor the Shares will be entitled to
preemptive rights.
The Indenture is in due and proper form, has been duly and validly
executed and delivered and is a valid and enforceable instrument in
accordance with its terms, except to the extent that enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and to the extent that
general equitable principles may limit the right to obtain the remedy of
specific performance of certain of the obligations thereunder.
The filing of the Registration Statement and the execution and
delivery by the Company of this Agreement, and the consummation of the
transactions contemplated hereby and thereby, have been duly authorized by
the board of directors
4
5
of the Company, and all necessary corporate action to authorize and approve
the same has been taken. This Agreement has been duly executed and
delivered by the Company and is a valid and legally binding obligation of
the Company subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
The Company and its subsidiaries have good and marketable title to, or
valid and enforceable leasehold interests in, all items of real and
personal property which are material to the business of the Company and its
subsidiaries taken as a whole, free and clear of all liens, encumbrances
and claims (other than the liens disclosed in the Prospectus) which might
materially interfere with the conduct of the business of the Company and
its subsidiaries taken as a whole.
Except to the extent disclosed in the Prospectus, neither the Company
nor any of its subsidiaries is in violation of its corporate charter or
bylaws or in default under any obligation, agreement, covenant or condition
contained in any mortgage or other material contract, lease, note,
indenture or instrument to which it is a party or by which it may be bound,
the effect of which violation or default would be material to the Company
and its subsidiaries taken as a whole, or is in violation in any material
respect of any law, ordinance, governmental rule, regulation or court
decree to which it or its property may be subject the effect of which
violation would be material to the Company and its subsidiaries taken as a
whole, or has failed to obtain any material license, permit, certificate,
franchise or other governmental authorization or permit necessary to the
ownership of its property or to the conduct of its business; and the
execution, delivery and performance of this Agreement by the Company, the
sale of the Debentures and the Shares, compliance by the Company with the
provisions of the Debentures and the Indenture, and the consummation of the
transactions contemplated by this Agreement will not conflict with, result
in the creation or imposition of any lien, charge or encumbrance upon any
of the properties or assets of the Company pursuant to the terms of, or
constitute a breach of or default under, any agreement, indenture or
instrument to which the Company is a party, or by which the Company is
bound, or result in a violation of the corporate charter or bylaws of the
Company or, except to the extent disclosed in the Prospectus, any law or
ordinance to which the Company or its properties may be subject or of any
order, rule or regulation of any court or governmental agency having
jurisdiction over the Company or its properties, except for conflicts,
breaches, violations or defaults which would be immaterial to the business
and operations of the Company and its subsidiaries taken as a whole and
which would not affect the validity or enforceability of the Debentures,
the Indenture or this Agreement or otherwise adversely affect the rights,
duties or obligations of the Trustee, the Underwriters or the holders of
the Debentures or the Shares.
No approval or consent of any governmental body other than as may be
required under the Act or the Trust Indenture Act or in connection or
compliance with the provisions of the securities or "blue sky" laws of any
jurisdiction is legally required for the carrying out by the Company of the
provisions of this Agreement.
5
6
Except as described in the Registration Statement and the Prospectus,
there is no litigation or governmental proceeding pending or, to the
knowledge of the Company threatened against the Company or any of its
subsidiaries which, if adversely resolved, could reasonably be expected to
result in any material adverse change in the business, properties,
financial condition, results of operations or prospects of the Company and
its subsidiaries taken as a whole or which is required to be disclosed in
the Registration Statement or the Prospectus.
There are no contracts or other documents which are required to be
filed as exhibits to the Registration Statement by the Act or by the Rules
and Regulations which have not been filed as exhibits to the Registration
Statement.
Except as disclosed in the Prospectus, the Company and each of its
subsidiaries have sufficient authority under statutory provisions or by
grant of franchises or permits by municipalities or counties to conduct
their respective businesses as presently conducted and as described in the
Registration Statement and Prospectus.
Except as set forth in the Registration Statement and the Prospectus,
the Company and its subsidiaries are in compliance with all applicable
existing federal, state and local laws and regulations relating to
protection of human health or the environment or imposing liability or
standards of conduct concerning any Hazardous Material ("Environmental
Laws"), except for such instances of noncompliance which, either singly or
in the aggregate, would not have a material adverse effect on the condition
(financial or otherwise), results of operations or properties of the
Company and its subsidiaries, taken as a whole. The term "Hazardous
Material" means (i) any "hazardous substance" as defined by the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, (ii) any "hazardous waste" as defined by the Resource
Conservation and Recovery Act, as amended, (iii) any petroleum or petroleum
product, (iv) any polychlorinated biphenyl, and (v) any pollutant or
contaminant or hazardous, dangerous or toxic chemical, material, waste or
substance regulated under or within the meaning of any other law relating
to protection of human health or the environment or imposing liability or
standards of conduct concerning any such chemical, material, waste or
substance.
No labor dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is imminent; and
the Company knows of no existing or imminent labor disturbance by the
employees of any of its principal suppliers, manufacturers or contractors
which might reasonably be expected to result in any material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries taken as
a whole.
Each of the Company and its subsidiaries owns, possesses or has the
right to use all licenses, trademarks, patents, patent rights, inventions,
copyrights, service marks and trade names presently employed by it in
connection with the businesses now operated by it, and neither the Company
nor any of its subsidiaries has
6
7
received any notice of infringement of or conflict with asserted rights of
others with respect to any of the foregoing.
The Company and its subsidiaries maintain insurance covering their
properties, operations, personnel and businesses which insures against such
losses and risks as are adequate in accordance with its reasonable business
judgment to protect the Company and its subsidiaries and their businesses.
Neither the Company nor any of its subsidiaries has received notice from
any insurer or agent of such insurer that substantial capital improvements
or other expenditures will have to be made in order to continue such
insurance. All such insurance is outstanding and duly in force on the date
hereof and will be outstanding and duly in force on the Closing Date.
Neither the Company nor any of its subsidiaries is an "investment
company" or an entity "controlled" by an "investment company," as such
terms are defined in the Investment Company Act of 1940, as amended.
Except as otherwise disclosed in the Prospectus, the Company and each
of its subsidiaries have all necessary consents, authorizations, approvals,
orders, certificates and permits of and from, and have made all
declarations and filings with, all federal, state, local and other
governmental authorities, all selfregulatory organizations and all courts
and other tribunals, to own, lease, license and use their respective
properties and assets and to conduct their respective businesses in the
manner described in the Prospectus, except to the extent that the failure
to obtain or file would not have a material adverse effect on the Company
and its subsidiaries taken as a whole.
Any certificate signed by any officer of the Company and delivered to you
or to counsel for the Underwriters shall be deemed a representation and warranty
by the Company to the Underwriters as to the matters covered thereby.
Purchase, Sale and Delivery of Debentures and Shares. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell to the Underwriters,
and the Underwriters agree to purchase the Firm Shares and the Debentures from
the Company. The purchase price for the Debentures will be [__%] of the
principal amount thereof, and the purchase price for the Firm Shares will be an
amount equal to the initial public offering price for the Shares as set forth in
the Prospectus (the "Share Public Offering Price"), less [___%] of the Share
Public Offering Price.
Delivery of the Debentures and the Firm Shares, in definitive form, and
payment therefor, shall be made at 10:00 A.M., St. Louis time, on the fourth
business day after the Registration Statement shall have been declared effective
by the Commission, or on such later date and time as may be agreed upon in
writing between the Underwriters and the Company, such day and time of delivery
and payment being herein called the "Closing Date." On the Closing Date, the
Debentures and the Firm Shares shall be delivered by the Company to the
Underwriters at The Depository Trust Company in New York, New York, against
payment of the purchase price therefor in funds immediately available to the
order of the Company. The
7
8
Company agrees to make available to the Underwriters for inspection and
packaging in New York, New York, at least one full business day prior to the
Closing Date, certificates for the Debentures and the Shares so to be delivered
in good delivery form and in such denominations and registered in such names as
the Underwriters shall have requested, all such requests to have been made in
writing at least one full business day prior to the Closing Date.
In addition, on the basis of the representations and warranties herein
contained, but subject to the terms and conditions herein set forth, the Company
hereby grants to the Underwriters the option to purchase all or a portion of the
Option Shares as may be necessary to cover over-allotments, at the Share Public
Offering Price. This option may be exercised only to cover over-allotments in
the sale of Firm Shares by the Underwriters. This option may be exercised at any
time (but not more than once) on or before the thirtieth day following the
effective date of the Registration Statement by written notice by you to the
Company. Such notice shall set forth the number of Option Shares as to which the
option is being exercised, and the date and time, as reasonably determined by
the Underwriters, when the Option Shares are to be delivered (such date and time
being herein sometimes referred to as the "Additional Closing Date"); provided,
however, that the Additional Closing Date shall not be earlier than the Closing
Date nor earlier than the third business day after the date on which the option
shall have been exercised nor later than the eighth business day after the day
on which the option shall have been exercised, unless otherwise agreed by the
parties.
Payment for the Option Shares shall be made in immediately available funds,
payable to the order of the Company, at the offices of the Company, or such
other place as shall be agreed upon between us, against delivery of the Option
Shares to the Underwriters through the facilities of The Depository Trust
Company for the account of the Underwriters.
Certificates for the Option Shares shall be in such denominations and
registered in such names as requested in writing by the Underwriters at least
two business days prior to the Additional Closing Date.
Covenants. The Company covenants and agrees with the Underwriters:
To furnish promptly to each of the Underwriters and counsel for the
Underwriters one signed copy of the Registration Statement as originally
filed, and of each amendment thereto filed with the Commission, including
all consents and exhibits filed therewith;
to deliver promptly to the Underwriters such number of conformed
copies of the Registration Statement as originally filed and each amendment
thereto (excluding exhibits other than this Agreement) and of each
Preliminary Prospectus, the Prospectus and any amended or supplemented
Prospectus as the Underwriters may reasonably request;
to file promptly with the Commission the Prospectus pursuant to Rule
424(b) of the Rules and Regulations and to file with the Commission any
amendment to the Registration Statement or the Prospectus or any supplement
to the Prospectus that
8
9
may, in the reasonable judgment of the Company or the Underwriters, be
required by the Act or requested by the Commission and approved by the
Underwriters;
prior to filing with the Commission any amendment to the Registration
Statement or amendment or supplement to the Prospectus, or to filing any
Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a
copy thereof to each of the Underwriters and counsel for the Underwriters
and obtain the consent of the Underwriters to the filing, which consent
will not be unreasonably withheld;
to use its best efforts to cause any posteffective amendment to the
Registration Statement to become effective and to advise the Underwriters
promptly (i) when any posteffective amendment to the Registration Statement
becomes effective, (ii) of any request or proposed request by the
Commission for an amendment to the Registration Statement, an amendment or
a supplement to the Prospectus or for any additional information, (iii) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation or threat of
any stop order proceeding, (iv) of receipt by the Company of any
notification with respect to the suspension of the qualification of the
Debentures or the Shares for sale in any jurisdiction or the initiation or
threat of any proceeding for that purpose, and (v) of the happening of any
event which makes untrue any statement of a material fact made in the
Registration Statement or the Prospectus, or which requires the making of a
change in the Registration Statement or the Prospectus in order to make any
material statement therein not misleading;
if, at any time when a prospectus relating to the Debentures or the
Shares is required to be delivered under the Act, any event occurs 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 a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it shall be
necessary to amend or supplement the Registration Statement or the
Prospectus to comply with the Act or the Exchange Act or the rules and
regulations of the Commission under such Acts, the Company promptly will
prepare and file with the Commission, subject to Paragraph , an amendment
or supplement which will correct such statement or omission or an amendment
which will effect such compliance;
if the Commission shall issue a stop order suspending the
effectiveness of the Registration Statement, to make every reasonable
effort to obtain the lifting of that order at the earliest possible time;
as soon as practicable after the effective date of the Registration
Statement, to make generally available to its security holders and to
deliver to the Underwriters an earnings statement, conforming with the
requirements of Section 11(a) of the Act, covering a period of at least
twelve months beginning after the effective date of the Registration
Statement, provided that the Company may comply with this Paragraph by
complying with the safe harbor provisions of Rule 158 of the Rules and
Regulations;
9
10
for a period of three years from the effective date of the
Registration Statement, to furnish to the Underwriters copies of all
reports to shareholders and all reports, filings and financial statements
furnished by the Company to any securities exchange pursuant to
requirements of or agreements with such exchange or to the Commission
pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder;
to endeavor to qualify the Debentures and the Shares for offer and
sale under the securities laws of such jurisdictions as the Underwriters
may reasonably request, provided that no such qualification shall be
required if as a result thereof the Company would be required to qualify as
a foreign corporation, subject itself to general taxation or would be made
subject to service of general process, in each case in any jurisdiction in
which it is not so qualified or subject; and to maintain such
qualifications in effect so long as required for the distribution of the
Debentures and the Shares and to arrange for the determination of the
legality of the Debentures and the Shares for purchase by institutional
investors;
whether or not the transactions contemplated by this Agreement are
consummated or this Agreement is terminated, the Company will pay (i) the
costs incident to the sale and delivery of the Debentures and the Shares
and any taxes payable in that connection; (ii) the costs incident to the
preparation, printing and filing under the Act of the Registration
Statement, any Preliminary Prospectus, the Prospectus and any amendments,
supplements and exhibits thereto; (iii) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and
any posteffective amendments thereof (including exhibits), any Preliminary
Prospectus, the Prospectus, and any amendment or supplement to the
Prospectus; (iv) the costs, if any, of printing and distributing this
Agreement; (v) the costs of filings incident to securing any required
review by the National Association of Securities Dealers, Inc.; (vi) the
fees and expenses of qualifying the Debentures and the Shares under the
securities laws of the several jurisdictions as provided in this Paragraph
and of preparing and printing a Blue Sky Memorandum (including related fees
and expenses of counsel to the Underwriters); (vii) the cost of printing
the Indenture, the Debentures, the certificates for the Shares and the fees
of the Trustee; (viii) the fees and expenses of the Company's accountants
and counsel; and (ix) all other costs and expenses incident to the
performance of the obligations of the Company under this Agreement;
provided, however, that except as provided in sub-parts (v) and (vi) of
this Paragraph and in Paragraph , the Underwriters shall pay their own
costs and expenses, including the fees and expenses of their counsel, any
transfer taxes on the Debentures and the Shares which they may sell and the
expenses of advertising any offering of the Debentures and the Shares made
by the Underwriters;
until the termination of the offering of the Debentures and the
Shares, to timely file all documents, and any amendments to previously
filed documents, required to be filed by it pursuant to the Exchange Act;
to apply the net proceeds of the Debentures and the Shares as set
forth in the Prospectus.
10
11
Conditions of Underwriters' Obligations. The obligations of the
Underwriters hereunder are subject to the accuracy, when made and on the Closing
Date, of the representations and warranties of the Company contained herein, to
the performance by the Company of its obligations hereunder, and to each of the
following additional terms and conditions:
The Prospectus shall have been timely filed to the extent required; at
or before the Closing Date or the Additional Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued, and prior to that time no stop order proceeding nor any order
directed at any document incorporated by reference in the Prospectus shall
have been initiated or, to the knowledge of the Company, threatened by the
Commission and no challenge shall have been made to any document
incorporated by reference in the Prospectus; any request of the Commission
for inclusion of additional information in the Registration Statement or
the Prospectus or otherwise shall have been complied with; and the Company
shall not have filed with the Commission the Prospectus or any amendment or
supplement to the Registration Statement or the Prospectus without the
consent of the Underwriters.
The Underwriters shall not have discovered and disclosed to the
Company on or prior to the Closing Date that the Registration Statement or
the Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact which, in the reasonable opinion of the Underwriters or
Armstrong, Teasdale, Schlafly & ▇▇▇▇▇, counsel for the Underwriters, is
material or omits to state a fact that, in the reasonable opinion of the
Underwriters or such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Debentures, the
Shares, the form of the Registration Statement and the Prospectus, other
than financial statements and other financial data, and all other legal
matters relating to this Agreement and the transactions contemplated hereby
shall be satisfactory in all respects to Armstrong, Teasdale, Schlafly &
▇▇▇▇▇, counsel for the Underwriters; and the Company shall have furnished
to such counsel all documents and information that such counsel may
reasonably request to enable them to pass upon such matters.
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, as counsel to the Company, shall have furnished to
the Underwriters their opinion, addressed to the Underwriters and dated the
Closing Date and the Additional Closing Date, if any, to the effect that:
The Company and each of its subsidiaries has been duly
incorporated and is validly existing and in good standing under the
laws of its jurisdiction of incorporation, is duly qualified to do
business and in good standing as a foreign corporation in each
jurisdiction in which its ownership of property or conduct of business
requires such qualification and wherein the failure to be so qualified
would have a material adverse effect on the business of
11
12
the Company or such subsidiary, and has all corporate power and
authority necessary to own or hold its properties and conduct the
business in which it is engaged as described in the Prospectus.
The Indenture has been duly authorized, qualified under the Trust
Indenture Act, executed and delivered; the Debentures have been duly
authorized, executed, authenticated, issued and delivered; and the
Indenture and the Debentures constitute valid and legally binding
obligations of the Company, enforceable in accordance with their
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
All of the outstanding shares of Common Stock of the Company
(including the Shares) have been duly authorized and validly issued,
are fully paid and non-assessable and conform to the description
thereof in the Prospectus; and the shareholders of the Company have no
preemptive rights with respect to the Shares being issued and sold by
the Company hereunder.
All corporate action required to have been taken by the Company
for the due and proper authorization, issuance, sale and delivery of
the Debentures and the Shares, has been validly and sufficiently
taken, and the Debentures constitute valid and binding obligations of
the Company and the Shares have been duly authorized, validly issued
and are nonassessable.
The Indenture, the Debentures and the Shares conform in all
respects to the statements concerning them in the Prospectus.
To the knowledge of such counsel based upon communications with
representatives of the Commission, the Registration Statement is
effective under the Act, and the Prospectus was timely filed with the
Commission as required, and to the knowledge of such counsel no stop
order suspending the effectiveness of the Registration Statement has
been issued, and no proceeding for that purpose is pending or
threatened by the Commission.
To the knowledge of such counsel, no order directed to any
document incorporated by reference in the Prospectus has been issued,
and no challenge has been made to the accuracy or adequacy of any such
document.
The Registration Statement and the Prospectus and each amendment
or supplement, if any, thereto comply as to form in all material
respects with the requirements of the Act and the Rules and
Regulations thereunder and the Trust Indenture Act and the rules and
regulations of the Commission under such act (except that no opinion
need be expressed as to the Trustee's Statement of Qualification and
as to the financial statements or financial data contained therein).
12
13
The statements made in the Prospectus, insofar as they purport to
summarize the provisions of statutes, legal and governmental
proceedings, contracts or other documents specifically referred to
therein are accurate and fairly present the information called for
with respect thereto by Form S2 under the Act (except that no opinion
need be expressed as to financial statements or financial date
contained therein).
To such counsel's knowledge, except as described in the
Prospectus there is no litigation or any governmental proceeding
pending or threatened against the Company or any of its subsidiaries
which could have a material adverse effect on the Company and its
subsidiaries taken as a whole, or is required to be disclosed in the
Registration Statement or the Prospectus.
To such counsel's knowledge, there are no contracts or other
documents which are required to be filed as exhibits to the
Registration Statement by the Act or by the Rules and Regulations
which have not been filed as exhibits to the Registration Statement as
provided by the Rules and Regulations.
To such counsel's knowledge, neither the Company nor any of its
subsidiaries is in violation of its corporate charter or bylaws, or in
default under any agreement, indenture or instrument, the effect of
which violation or default would be material to the Company and its
subsidiaries taken as a whole or is in violation in any material
respect of any law, ordinance, governmental rule, regulation or court
decree to which it or its property may be subject or, except as
disclosed in the Prospectus, has failed to obtain any material
license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property or
to the conduct of its business.
This Agreement has been duly authorized, executed and delivered
by the Company; and the execution, delivery and performance of this
Agreement by the Company and the consummation of the transactions
contemplated by this Agreement will not conflict with, or result in
the creation or imposition of any material lien, charge or encumbrance
upon any of the property or assets of the Company pursuant to the
terms of, or constitute a default under, any agreement, indenture,
mortgage, deed of trust, loan agreement or other similar agreement or
instrument known to such counsel, or result in a violation of the
corporate charter or bylaws of the Company or any of its subsidiaries
or any law or ordinance to which the Company or any of its
subsidiaries or their respective properties may be subject or of any
order, rule or regulation of any court or governmental agency having
jurisdiction over the Company, any of its subsidiaries or their
respective properties which breach or default could have a material
effect on the Company and its subsidiaries taken as a whole or which
would cause a current or prospective material adverse change in or
affecting the financial position, shareholders' equity or results of
operations of the Company or affecting the validity of the Debentures
or the
13
14
Shares or the legal authority of the Company to comply with the
Debentures, the Indenture or this Agreement.
No approval or consent of any governmental body, other than as
may be required under the Act or the Trust Indenture Act or in
connection or compliance with the provisions of the securities or
"blue sky" laws of any jurisdiction, is legally required for the issue
and sale of the Debentures and the Shares by the Company or for the
carrying out by the Company of the provisions of this Agreement.
Such counsel also shall confirm that during the preparation of the
Registration Statement and Prospectus, such counsel has participated in
conferences with your representatives and counsel for the Underwriters, and with
officers and representatives of the Company, at which conferences the contents
of the Registration Statement and Prospectus were discussed, reviewed and
revised. On the basis of the information which was developed in the course
thereof, considered in light of such counsel's understanding of applicable law
and the experience gained by such counsel thereunder, such counsel shall confirm
that nothing came to such counsel's attention that would lead such counsel to
believe that either the Registration Statement or Prospectus or any amendment or
supplement thereto (other than the financial statements and notes thereto, or
any related schedules therein, as to which such counsel need express no opinion)
contains any untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
On the Closing Date and on the Additional Closing Date, if any, there
shall have been furnished to you a certificate, dated such date, from the
Company, signed on behalf of the Company by the President and Chief
Executive Officer and the Treasurer, stating that to the knowledge of the
officers signing such certificate:
The representations, warranties and agreements of the Company in
Paragraph are true and correct as of such date; the Company has
complied with all its agreements contained herein; and the conditions
set forth in Paragraph have been fulfilled;
Neither the Registration Statement, as of its effective date, nor
the Prospectus, as of its date, included any untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and since the effective date of the Registration
Statement, no event has occurred which should have been set forth in a
supplement to or amendment of the Prospectus which has not been set
forth in such a supplement or amendment; and
No stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for that purpose have
been instituted or are pending or threatened, under the Act.
14
15
On the date of this Agreement and on the Closing Date, and on the
Additional Closing Date, if any, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP shall have furnished to
you letters dated such dates substantially in the form of a draft of such
letter previously delivered to you.
Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, there shall not have been
any change specified in the letter referred to in Paragraph which makes it
impractical or inadvisable in the reasonable judgment of the Underwriters
to proceed with the public offering or delivery of the Debentures and the
Shares as contemplated by the Prospectus.
The Underwriters shall have received from Armstrong, Teasdale,
Schlafly & ▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date and the Additional Closing Date, if any, with
respect to the issuance and sale of the Debentures and the Shares, the
Indenture, the Registration Statement, the Prospectus, and other related
matters as the Underwriters may reasonably require, and the Company shall
have furnished to such counsel such documents as they reasonably request
for the purpose of enabling them to pass upon such matters.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to the Underwriters and Armstrong, Teasdale, Schlafly & ▇▇▇▇▇, counsel for the
Underwriters.
If any of the conditions specified in this Paragraph shall not have been
fulfilled when and as provided in this Agreement, or if any of the opinions or
certificates mentioned above or elsewhere in this Agreement shall not be in all
material respects reasonably satisfactory in form and substance to the
Underwriters and their counsel, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the Closing
Date by the Underwriters.
Indemnification and Contribution. The Company shall indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of the Act from and against any loss, claim, damage or
liability, joint or several, and any action in respect thereof, to which any
Underwriter or any such controlling person may become subject, under the Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus, or the Registration Statement or Prospectus as
amended or supplemented, or arises out of, or is based upon, the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and shall reimburse
each Underwriter and each such controlling person for any legal and other
expenses reasonably incurred by such Underwriter or such controlling person for
any legal and other expenses reasonably incurred by such Underwriter or such
controlling person in investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action; provided, however, that the
Company shall not be liable in any such case to
15
16
the extent that any such loss, claim, damage, liability or action arises out of,
or is based upon, any untrue statement or alleged untrue statement or omission
or alleged omission made in any Preliminary Prospectus or in the Registration
Statement or the Prospectus or any amendment or supplement thereto in reliance
upon and in conformity with written information furnished to the Company by the
Underwriters specifically for inclusion therein; and provided further that as to
any Preliminary Prospectus this indemnity agreement shall not inure to the
benefit of any Underwriter or any person controlling an Underwriter on account
of any loss, claim, damage, liability or action arising from the sale of
Debentures or the Shares to any person by any Underwriter if such Underwriter
failed to send or give a copy of any Prospectus, as the same may be amended or
supplemented, to that person within the time required by the Act, and the untrue
statement or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact in such Preliminary Prospectus was corrected
in such Prospectus, unless such failure resulted from noncompliance by the
Company with Paragraph hereof. The foregoing indemnity is in addition to any
liability which the Company may otherwise have to the Underwriters or any
controlling person of any of the Underwriters.
Each Underwriter, severally and not jointly, agrees to indemnify and hold
harmless the Company, its directors and officers who signed the Registration
Statement and any person who controls the Company within the meaning of the Act
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Company or any such director, officer or
controlling person may become subject, under the Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus or the Registration Statement or Prospectus as amended or
supplemented, (ii) the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, but in each case arising under subparagraphs (i) or (ii), only
to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter specifically for
inclusion therein, (iii) the failure of such Underwriter to comply with any
prospectus delivery requirement, or (iv) the content of, or omission of any
information from, any prospectus (as defined in Section 2(10) of the Act)
utilized by such Underwriter, other than the Preliminary Prospectus or the
Prospectus; and shall reimburse the Company for any legal and other expenses
reasonably incurred by the Company or any such director, officer or controlling
person in investigating or defending or preparing to defend against any such
loss, claim, damage, liability or action arising under subparagraphs (i) through
(iv) of this paragraph. The foregoing indemnity agreement is in addition to any
liability which the Underwriters may otherwise have to any such indemnified
party.
Promptly after receipt by an indemnified party under this Paragraph of
notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Paragraph, notify the indemnifying party in writing of the
claim or the commencement of that action, provided that the failure to notify
the indemnifying party shall not relieve it from any liability which it may have
to an indemnified party otherwise than under this Paragraph . If any such claim
or action shall be brought against an indemnified party, and it shall notify the
indemnifying
16
17
party thereof, the indemnifying party shall be entitled to participate therein,
and, to the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party; provided, however, if the defendants in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Paragraph for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
other than reasonable costs of investigation, unless (i) the indemnified party
shall have employed such counsel in connection with the assumption of legal
defenses in accordance with the proviso to the next preceding sentence, (ii) the
indemnified party shall have reasonably concluded that there may be a conflict
of interest between the indemnifying party and the indemnified party in the
conduct of the defense of such action (in which case the indemnifying party
shall not have the right to direct the defense of such action on behalf of the
indemnified party), (iii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action, or
(iv) the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party.
If the indemnification provided for in this Paragraph shall for any reason
be unavailable to an indemnified party under Paragraph or in respect of any
loss, claim, damage or liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other from the offering of the Debentures and 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 with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or action in
respect thereof, 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 with respect to such offering shall be deemed to be in the
same proportion as the total net proceeds from the offering of the Debentures
and the Shares (before deducting expenses) received by the Company bears to the
total underwriting discounts and commissions received by the Underwriters with
respect to such offering, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault shall be determined by reference to
whether the 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 the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would
17
18
not be just and equitable if contributions pursuant to this Paragraph were to be
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in this
Paragraph shall be deemed to include, for purposes of this Paragraph , any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the
provisions of this Paragraph , no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Debentures and the Shares underwritten by it and distributed to the public was
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise paid or become liable to pay by reason of any untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
The Underwriters confirm that the statements with respect to the public
offering of the Debentures and the Shares set forth on the cover page of, and
under the caption "Underwriting" in, the Prospectus are correct and were
furnished in writing to the Company by the Underwriters for inclusion in the
Registration Statement and the Prospectus.
The agreements contained in this Paragraph and the representations,
warranties and agreements of the Company contained in Paragraphs and shall
survive the delivery of the Debentures and the Shares and shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
Termination by the Underwriters. The obligations of the Underwriters
hereunder may be terminated by the Underwriters, in their absolute discretion,
by notice given to and received by the Company prior to delivery of and payment
for the Debentures and the Shares, if prior to that time (a)(i) the Company
shall have failed, refused or been unable to perform any agreement on its part
to be performed hereunder, (ii) any other condition to the Underwriters'
obligations hereunder is not fulfilled, (iii) the Company sustains a loss,
whether or not insured, by reason of fire, flood, accident or other calamity,
which, in the reasonable opinion of the Underwriters, substantially affects the
value of the properties of the Company or which materially interferes with the
operation of the business of the Company, (iv) trading generally shall have been
suspended or materially limited on or by the New York Stock Exchange or American
Stock Exchange or the National Association of Securities Dealers, Inc. or
trading in any securities of the Company shall have been suspended by any
securities exchange or in the over the counter market, (v) a banking moratorium
is declared by the United States, or by New York, Missouri or Rhode Island state
authorities, (vi) an outbreak of major hostilities or other national or
international calamity occurs, (vii) any action is taken by any government in
respect of its monetary affairs which, in the reasonable opinion of the
Underwriters, has a material adverse effect on the United States securities
markets, or (viii) there is a pending or threatened material legal or
governmental proceeding against the Company, other than proceedings described in
the Registration Statement or amendments or supplements thereto delivered to the
Underwriters prior to the execution of this Agreement,
18
19
which in the reasonable opinion of the Underwriters has a material adverse
effect upon the Company, and (b) with respect to the events specified in clauses
(a)(i) through (a)(iii) hereof, such event singly or together with other such
events makes it, in the Underwriters' reasonable judgment, impractical to market
the Shares and Debentures on the terms and in the manner contemplated in the
Prospectus.
Substitution of Underwriters. If one or more of the Underwriters shall fail
on the Closing Date to purchase and pay for the Debentures and Firm Shares
agreed to be purchased by such Underwriter hereunder (the "Defaulted Debentures"
or the "Defaulted Shares", respectively) and such failure to purchase shall
constitute a default in the performance of its obligations under this Agreement,
the remaining Underwriters shall have the right, within 48 hours thereafter, to
make arrangements for one or more of the non-defaulting Underwriters, or any
other persons, to purchase all, but not less than all, of the Defaulted
Debentures or the Defaulted Shares, as the case may be, in such amounts as may
be agreed upon and upon the terms herein set forth; if, however, the
Underwriters shall not have completed such arrangements within such 48 hour
period, then:
with respect to the Defaulted Debentures:
if the amount of Defaulted Debentures does not exceed 10% of the
aggregate principal amount of the Debentures, the non-defaulting
Underwriters shall be obligated to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear
to the underwriting obligations of all non-defaulting Underwriters; or
if the amount of Defaulted Debentures exceeds 10% of the
aggregate principal amount of the Debentures, the non-defaulting
Underwriters shall have the right to purchase all, but shall not be under
any obligation to purchase any, of the Defaulted Debentures and if such
non-defaulting Underwriters do not purchase all the Defaulted Debentures,
this Agreement will terminate without liability to any non-defaulting
Underwriter; and
with respect to the Defaulted Shares:
if the number of Defaulted Shares, does not exceed 10% of the
aggregate number of the Firm Shares, the non-defaulting Underwriters shall
be obligated to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters; or
if the number of Defaulted Shares, exceeds 10% of the aggregate
number of the Firm Shares, the non-defaulting Underwriters shall have the
right to purchase all, but shall not be under any obligation to purchase
any, of the Defaulted Shares and if such non-defaulting Underwriters do not
purchase all the Defaulted Shares, this Agreement will terminate without
liability to any non-defaulting Underwriter.
19
20
In the event of a default by any Underwriter as set forth in this Paragraph
8 the Underwriters or the Company shall have the right to postpone the Closing
Date for such period not exceeding five business days in order that the required
changes in the Registration Statement and the Prospectus or in any other
documents or arrangement may be effected, and the Company agrees promptly to
file any amendments to the Registration Statement or supplements to the
Prospectus which may thereby be made necessary. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability to the
Company and any non-defaulting Underwriters for damages occasioned by its
default hereunder.
Termination by the Company. The obligation of the Company to deliver the
Debentures and the Shares upon payment therefor shall be subject to the
following conditions:
On the Closing Date the Indenture shall be qualified under the Trust
Indenture Act as and to the extent required by such Act; and no stop order
suspending the effectiveness of the Registration Statement shall be in effect
and no proceedings for that purpose shall then be pending before, or threatened
by, the Commission.
In case any of the conditions specified above in this Paragraph shall not
have been fulfilled, this Agreement may be terminated by the Company by
delivering written notice of termination to the Underwriters. Any such
termination shall be without liability of any party to any other party except to
the extent provided in Paragraph and Paragraph hereof.
Expenses Following Termination. If the sale of Shares and Debentures
provided for herein are not consummated because of any refusal, inability or
failure on the part of the Company to comply with any of the terms or to fulfill
any of the conditions of this Agreement, or if for any reason the Company shall
be unable to perform all its obligations under this Agreement, the Company shall
not be liable to the Underwriters for damages arising out of the transactions
covered by this Agreement, provided however that (i) the Company shall remain
liable to the extent provided in Paragraphs , and hereof and (ii) except where
termination occurs pursuant to Section 9 hereof, the Company shall pay the
out-of-pocket expenses incurred by the Underwriters in contemplation of the
performance by them of their obligations hereunder, including the fees and
disbursements of their counsel and their travel, postage, telegraph and
telephone expenses.
Notices. The Company shall be entitled to act and rely upon any request,
consent, notice or agreement given or made by the Underwriters. Any notice to
the Underwriters shall be sufficient if given in writing or by telecopy
addressed to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇); any notice to the Company shall
be sufficient if given in writing or by telecopy addressed to the Company at:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇).
Parties. This Agreement shall inure to the benefit of and be binding upon
the Underwriters, the Company and their respective successors. This Agreement
and the terms and provisions hereof are for the sole benefit of only those
persons, except that (a) the representations, warranties, indemnities and
agreements of the Company contained in this Agreement shall also be deemed to be
for the benefit of the person or persons, if any, who
20
21
control the Underwriters within the meaning of Section 15 of the Act, and (b)
the indemnities and agreements of the Underwriters contained in Paragraph of
this Agreement shall be deemed to be for the benefit of directors of the
Company, officers of the Company who have signed the Registration Statement and
any person controlling the Company. Nothing in this Agreement is intended or
shall be construed to give any person other than the persons referred to in this
paragraph any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision contained herein.
Defined Terms. For purposes of this Agreement, (a) "business day" means any
day on which the American Stock Exchange is open for trading, and (b)
"subsidiary" shall have the meaning set forth in Rule 405 of the Rules and
Regulations.
Successors. This Agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors and assigns and the officers
and directors and controlling persons referred to in Paragraph hereof, and no
other person will have any right or obligation hereunder. The term "successors
and assigns" as used in this Agreement shall not include any purchaser, as such
purchaser, of any of the Debentures or the Shares from the Underwriters.
Counterparts. This Agreement may be executed in multiple counterparts, all
of which, when taken together, shall constitute one and the same agreement among
the parties to such counterparts.
Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Missouri.
21
22
If the foregoing correctly sets forth the agreement between the Company and
the Underwriters, please indicate your acceptance in the space provided for that
purpose.
Very truly yours,
VALLEY RESOURCES, INC.
By:
President and Chief Executive Officer
Accepted:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & CO., L.P.
By:
Title:
22
23
Schedule I
$7,000,000 Principal Amount of
___% Debentures due 2027 and
620,000 Shares of Common Stock
of
VALLEY RESOURCES, INC.
Number of Principal
Firm Shares to Amount of De-
be bentures to be
Purchased Purchased
-------------------------------
Underwriters
------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P.
First Albany Corporation
------------- -------------
TOTAL 620,000 $7,000,000
23