EXHIBIT 1(c)
HAWAIIAN ELECTRIC INDUSTRIES, INC.
(a Hawaii corporation)
2,000,000 Shares of Common Stock
(Without Par Value)
PURCHASE AGREEMENT
March__, 2004
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇, SACHS & CO.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Hawaiian Electric Industries, Inc., a Hawaii corporation (the
"Company"), confirms its agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and each of the other
Underwriters named in Schedule A hereto (collectively, the "Underwriters," which
term shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), with respect to the issuance and sale by the Company and the
purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of shares of Common Stock, without par value, of the Company
("Common Stock") set forth in said Schedule A, and with respect to the grant by
the Company to the Underwriters, acting severally and not jointly, of the option
described in Section 2(b) hereof to purchase all or any part of 300,000
additional shares of Common Stock to cover over-allotments, if any. The
aforesaid 2,000,000 shares of Common Stock (the "Initial Securities") to be
purchased by the Underwriters and all or any part of the 300,000 shares of
Common Stock subject to the option described in Section 2(b) hereof (the "Option
Securities") are hereinafter called, collectively, the "Securities."
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Underwriters deem advisable after this
Agreement has been executed and delivered at the initial public offering price
per share for the Securities set forth in Schedule B.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (Nos. 333-113120,
▇▇▇-▇▇▇▇▇▇-▇▇ and 333-113120-02), as amended by Amendment No. 1 thereto,
covering, among other securities, the registration of the Securities under the
Securities Act of 1933, as amended (the "1933 Act"), including the preliminary
prospectus supplement and preliminary prospectus relating to the Securities.
Promptly after execution and delivery of this Agreement, the Company will
prepare and file a final prospectus supplement and final prospectus relating to
the Securities in accordance with the provisions of Rule 430A ("Rule 430A") of
the rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act
Regulations. The information included in such prospectus supplement that was
omitted from such registration statement at the time it became effective but
that is deemed to be part of such registration statement at the time it became
effective pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A
Information." Each prospectus (including any preliminary prospectus supplement)
relating to the Securities used before such registration statement became
effective, and any prospectus (including any preliminary prospectus supplement)
relating to the Securities that omitted the Rule 430A Information that was used
after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, as amended as of the date hereof, including the exhibits thereto,
schedules thereto, if any, and the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it (or the most
recent post-effective amendment thereto) became effective and including the Rule
430A Information deemed to be a part thereof is herein called the "Registration
Statement." The final prospectus supplement and final prospectus relating to the
Securities, including the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the 1933 Act as of the date hereof, in the form
first furnished to the Underwriters for use in connection with the offering of
the Securities is herein called the "Prospectus." For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus or the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be, after the date thereof or (in
the case of the Registration Statement) its date of effectiveness.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof, as of the
Closing Time referred to in Section
2
2(c) hereof, and as of the Date of Delivery, if any, referred to in Section 2(b)
hereof, and agrees with each Underwriter, as follows:
(i) Compliance with Registration Requirements. The Company meets
the requirements for use of Form S-3 under the 1933 Act. The
Registration Statement has become effective under the 1933 Act and no
stop order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the Company,
are contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with.
At the respective times the Registration Statement and any
post-effective amendments thereto became effective and at the Closing
Time (and, if any Option Securities are purchased, at the Date of
Delivery), the Registration Statement and any amendments and supplements
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and did not
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading. Neither the Prospectus nor any
amendments or supplements thereto, at the time the Prospectus or any
such amendment or supplement was issued and at the Closing Time (and, if
any Option Securities are purchased, at the Date of Delivery), included
or will include an untrue statement of a material fact or omitted or
will 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. The representations and warranties in this
subsection shall not apply to (a) 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 any
Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration
Statement or the Prospectus (as set forth in Section 6(e) hereof) and
(b) the information under the caption "Book-Entry System" in the
Prospectus.
Each preliminary prospectus and the prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus delivered
to the Underwriters for use in connection with the offering of the
Securities, if filed with the Commission pursuant to ▇▇▇▇▇, was
identical to the electronically transmitted copies thereof filed with
the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement and
the Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectus, at the time the
Registration Statement became effective, at the time the Prospectus was
delivered to the Underwriters for their use in
3
making confirmations of sales of the Securities and at the Closing Time
(and if any Option Securities are purchased, at the Date of Delivery),
did not and 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.
(iii) Independent Accountants. The accountants who have audited
the consolidated financial statements of the Company and the
Subsidiaries (as defined herein) that are incorporated by reference in
the Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(iv) No Material Adverse Change in Business. Otherwise than as
set forth or contemplated in the Registration Statement and the
Prospectus, neither the Company nor any Subsidiaries has sustained since
the date of the most recent audited financial statements incorporated by
reference in the Registration Statement and the Prospectus any 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, which loss or
interference would have a material adverse effect on the consolidated
financial condition or consolidated results of operations of the Company
and the Subsidiaries taken as a whole; and, since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock of the
Company or any Significant Subsidiary (as defined herein) (except for
(i) issuances of capital stock of the Company pursuant to dividend
reinvestment, stock purchase, stock option, director or employee benefit
plans in effect on the date hereof, (ii) issuances of capital stock by
Hawaiian Electric Company, Inc. ("HECO") or its subsidiaries that have
been approved by the Public Utilities Commission of the State of Hawaii
or by any other Significant Subsidiary as disclosed in writing to the
Underwriters and (iii) redemptions by HECO, Hawaii Electric Light
Company, Inc. ("HELCO"), Maui Electric Company, Limited ("MECO") and ASB
Realty Corporation of their respective preferred stock in accordance
with the terms thereof) or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, consolidated financial
condition or consolidated results of operations of the Company and the
Subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Registration Statement and the Prospectus.
(v) Good Standing of the Company and the Significant
Subsidiaries. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Hawaii, with corporate power and authority to own or lease its
properties and conduct its business as described in the Registration
Statement and the Prospectus; the Company does not itself conduct any
business or own or lease any property in any jurisdiction outside the
State of Hawaii that would require it to qualify to do business as a
foreign corporation and where the failure to be so qualified would
subject the Company to any material liability or disability. Each
Significant Subsidiary of the Company, other than American Savings Bank,
F.S.B. ("ASB"), has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation. Except for the Significant Subsidiaries and ASB
4
Realty Corporation, no Subsidiary constitutes a "significant subsidiary"
within the meaning of Rule 1-02 (w) of Regulation S-X. Except as
described in the Registration Statement and the Prospectus, there is no
development relating to, or in connection with, the business of any
Subsidiary (other than a Significant Subsidiary) that would reasonably
be expected to have a material adverse effect on the consolidated
financial condition or consolidated results of operations of the Company
and the Subsidiaries taken as a whole. As used in this Agreement, the
term "Subsidiary" means each corporation, at least a majority of the
outstanding voting stock of which is owned by the Company, by one or
more Subsidiaries or by the Company and one or more Subsidiaries.
(vi) Good Standing of ASB. ASB has been duly formed and is
validly existing as a federal savings bank duly chartered and in good
standing under the laws of the United States; and, since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, there have not been any increases in total non-accruing
loans or the provision for loan losses of ASB and its subsidiaries,
which increase or increases, individually or in the aggregate, would
have a material adverse effect on the consolidated financial condition
or consolidated results of operations of the Company and the
Subsidiaries taken as a whole.
(vii) Capitalization. The Company has an authorized
capitalization as set forth in the Prospectus, and all of the issued
shares of capital stock of the Company have been duly and validly
authorized and issued and, other than awards of restricted stock under
the Company's 1987 Stock Option and Incentive Plan (the "Stock Option
Plan") that have not yet vested, are fully paid and nonassessable; none
of the outstanding shares of capital stock of the Company was issued in
violation of the preemptive or other similar rights of any
securityholder of the Company; all of the issued shares of capital stock
of each Significant Subsidiary have been duly and validly authorized and
issued and are fully paid and nonassessable; and all of such shares,
other than shares of common stock of ASB Realty Corporation and other
than shares of preferred stock (including the outstanding preferred
stock of HECO and its subsidiaries) is owned directly or indirectly by
the Company, free and clear of any liens, encumbrances or security
interests, except as described in the Registration Statement and the
Prospectus.
(viii) Absence of Defaults and Conflicts. The execution,
delivery and performance of this Agreement by the Company and any other
agreement or instrument entered into or issued or to be entered into or
issued by the Company in connection with the transactions contemplated
hereby or in the Registration Statement and the Prospectus (including
the issuance and sale of the Securities and the use of the proceeds from
the sale of the Securities as described in the Prospectus under the
caption "Use of Proceeds") and the consummation of the transactions
contemplated herein and in the Registration Statement and the Prospectus
and compliance by the Company with its obligations hereunder do not and
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, or result in the
imposition of a lien or security interest under, any material indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which the Company or any Significant Subsidiary is a party or by
which the Company or any Significant Subsidiary is bound or to which any
of the property or assets used in the conduct of the Company's or any
Significant Subsidiary's business is subject,
5
nor will such action result in any violation of the provisions of the
Company's or any Significant Subsidiary's charter or by-laws or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any Significant
Subsidiary or any of their properties.
(ix) Absence of Legal Proceedings. Other than as set forth or
contemplated in the Registration Statement and the Prospectus, there are
no legal or governmental proceedings pending or, to the knowledge of the
Company, threatened to which the Company or any Subsidiary is a party or
to which any property of the Company or any Subsidiary is the subject
that is reasonably expected to have a material adverse effect on the
consolidated financial condition or consolidated results of operations
of the Company and the Subsidiaries taken as a whole.
(x) Licenses, Franchises, Trademarks, Easements, etc. Other than
as set forth or contemplated in the Registration Statement and the
Prospectus, the Company and each of HECO, HELCO, MECO, HEI Diversified,
Inc. and ASB (each, a "Significant Subsidiary") and their respective
subsidiaries have all requisite power and authority, and possess all
necessary authorizations, approvals, orders, licenses, franchises,
certificates and permits of and from, and to the extent required by law
are duly registered with, all governmental and regulatory officials,
commissions, departments and bodies in, and are in compliance with all
applicable laws, rules and regulations of or under, each jurisdiction in
which any of them owns properties or assets or conducts any business as
described in the Registration Statement and the Prospectus, where the
failure to possess such authorization, approval, order, license,
franchise, certificate or permit, or where the failure so to register or
so to comply, would have a material adverse effect on the consolidated
financial condition or consolidated results of operations of the Company
and the Subsidiaries taken as a whole. Each such authorization,
approval, order, license, franchise, certificate and permit is valid and
in full force and effect, and there is no proceeding pending or, to the
Company's knowledge, threatened that may lead to the revocation,
termination, suspension or non-renewal of any such authorization,
approval, order, license, franchise, certificate or permit; the Company
and the Significant Subsidiaries have taken appropriate actions to
maintain in effect or renew each such authorization, approval, order,
license, franchise, certificate or permit; the Company and the
Significant Subsidiaries own, or possess adequate rights to use, all
patents, trademarks, service marks and rights necessary for or material
to the conduct of their respective business as described in the
Registration Statement and the Prospectus; and the Company and the
Significant Subsidiaries possess adequate easements, rights-of-way and
other rights to use of land not owned by the Company and the Significant
Subsidiaries, with such exceptions and defects as are described in the
Registration Statement and the Prospectus or as do not materially
interfere with the use made of such land by the Company and the
Significant Subsidiaries or as do not have a material adverse effect on
the consolidated financial condition or consolidated results of
operations of the Company and the Subsidiaries taken as a whole.
(xi) Public Utility Holding Company Act. The Company and HECO
are holding companies as defined in the Public Utility Holding Company
Act of 1935, as amended; however, by virtue of having filed an
appropriate application under the provisions of Section 3(a) of such
Act, the Company and HECO are exempt from all of the provisions
6
of such Act, except Section 9(a)(2) thereof, and will remain so exempt,
subject to future timely filing of annual exemption statements and such
filings as are required by Section 33 of such Act with respect to
interests of the Company or any of the Subsidiaries in any foreign
utility company, unless and except insofar as the Commission shall find
such exemption detrimental to the public interest or interest of
investors or consumers.
(xii) Investment Company Act. Neither the Company nor HEI
Investments, Inc. is or, after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as described
in the Prospectus, will be an "investment company" or "controlled" by an
"investment company," in each case within the meaning of the Investment
Company Act of 1940, as amended (the "1940 Act").
(xiii) Authorization and Description of Securities. The
Securities have been duly authorized for issuance and sale to the
Underwriters pursuant to this Agreement and, when issued and delivered
by the Company pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued, fully paid and
nonassessable; the Common Stock conforms to all statements relating
thereto contained in the Prospectus and such description conforms to the
rights set forth in the instruments defining the same; no holder of the
Securities will be subject to personal liability solely by reason of
being such a holder; and the issuance of the Securities is not subject
to the preemptive or other similar rights of any securityholder of the
Company or any of its Subsidiaries.
(xiv) Absence of Further Requirements. No authorization,
approval, consent, license, order, registration, qualification or decree
of or with any court or governmental authority or agency is necessary or
required for the performance by the Company of its obligations hereunder
in connection with the offering, issuance or sale of the Securities
hereunder or the consummation of the transactions contemplated by this
Agreement, except such as have been already obtained or made or as may
be required under state securities laws.
(xv) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(xvi) Environmental Laws. Except as described in the
Registration Statement and the Prospectus and except as would not,
singly or in the aggregate, result in a material adverse effect on the
consolidated financial condition or consolidated results of operations
of the Company and the Subsidiaries taken as a whole, (A) neither the
Company nor any of its Significant Subsidiaries is in violation of any
federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution
or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing,
7
distribution, use, treatment, storage, disposal, transport or handling
of Hazardous Materials (collectively, "Environmental Laws"), (B) the
Company and its Significant Subsidiaries have, or have applications
pending for, all permits, authorizations and approvals required under
any applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or, to the Company's knowledge,
threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental
Law against the Company or any of its Significant Subsidiaries and (D)
there are no events or circumstances known to the Company that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of
its Significant Subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(xvii) Financial Statements. The consolidated financial
statements incorporated by reference in the Registration Statement and
the Prospectus, together with the related schedules and notes, present
fairly, as of the time filed, the financial condition of the Company and
its consolidated Subsidiaries at the dates indicated and the
consolidated results of operations and cash flows of the Company and its
consolidated Subsidiaries for the periods specified; said financial
statements have been prepared in conformity with accounting principles
generally accepted in the United States of America ("GAAP"). The
supporting schedules, if any, incorporated by reference in the
Registration Statement present fairly, as of the time filed, in
accordance with GAAP, at the dates indicated and for the periods
specified, the information required to be stated therein. The selected
financial data in the Prospectus present fairly the information shown
therein and have been compiled, except for the restatement for
discontinued operations and the reclassification adjustment for other
intangibles, on a basis consistent with that of the audited financial
statements incorporated by reference in the Registration Statement.
(xviii) The Company maintains (x) systems of internal accounting
controls which are sufficient in all material respects to provide
reasonable assurances that (i) transactions are executed in accordance
with management's general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements
in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific authorization;
and (iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences; and (y) disclosure controls and
procedures (as defined in Rule 13a-14(c) under the 1934 Act).
(b) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its Subsidiaries delivered to the Underwriters or to counsel
for the Underwriters shall be deemed a representation and warranty by the
Company to each Underwriter as to the matters covered thereby.
8
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Company, at the price per share set forth in Schedule B, the number of
Initial Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Initial Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the Underwriters, severally
and not jointly, to purchase up to an additional 300,000 shares of Common Stock
at the price per share set forth in Schedule B, less an amount per share equal
to any dividends or distributions declared by the Company and payable on the
Initial Securities but not payable on the Option Securities. The option hereby
granted will expire 30 days after the date hereof and may be exercised in whole
or in part at one time, only for the purpose of covering over-allotments which
may be made in connection with the offering and distribution of the Initial
Securities upon written notice by the Underwriters to the Company on any
business day during such 30-day period setting forth the number of Option
Securities as to which the several Underwriters are exercising the option and
the time and date of payment and delivery for such Option Securities. Such time
and date of delivery (the "Date of Delivery") shall be determined by the
Underwriters, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Time, as
hereinafter defined. If the option is exercised as to all or any portion of the
Option Securities, each of the Underwriters, acting severally and not jointly,
will purchase that proportion of the total number of Option Securities then
being purchased which the number of Initial Securities set forth in Schedule A
opposite the name of such Underwriter bears to the total number of Initial
Securities, subject in each case to such adjustments as the Underwriters in
their discretion shall make to eliminate any sales or purchases of fractional
shares. For purposes of this Agreement, "business day" means any day on which
the New York Stock Exchange, Inc. (the "NYSE") is open for bidding.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Pillsbury Winthrop LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such
other place as shall be agreed upon by the Underwriters and the Company, at 9:00
A.M. (Eastern time) on the third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), or such other time
not later than ten business days after such date as shall be agreed upon by the
Underwriters and the Company (such time and date of payment and delivery being
herein called the "Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Underwriters and
the Company, on the Date of Delivery as specified in the written notice from the
Underwriters to the Company.
9
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
▇▇▇▇▇▇▇ ▇▇▇▇▇ for the respective accounts of the Underwriters of certificates
for the Securities to be purchased by them. It is understood that each
Underwriter has authorized ▇▇▇▇▇▇▇ ▇▇▇▇▇ to execute this Agreement on its behalf
and, for its account, to accept delivery of, receipt for, and make payment of
the purchase price for, the Initial Securities and the Option Securities, if
any, which it has agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Initial Securities or the Option
Securities, if any, to be purchased by any Underwriter whose funds have not been
received by the Closing Time or the Date of Delivery, as the case may be, but
such payment shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial Securities
and the Option Securities, if any, shall be in such denominations and registered
in such names as the Underwriters may request in writing at least one full
business day before the Closing Time or the Date of Delivery, as the case may
be. The certificates for the Initial Securities and the Option Securities, if
any, will be made available for examination and packaging by the Underwriters in
The City of New York not later than 10:00 A.M. (Eastern time) on the business
day prior to the Closing Time or the Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule
430A, and will notify the Underwriters immediately, and confirm the notice in
writing, (i) when any post-effective amendment to the Registration Statement
shall become effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (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 any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Company will promptly effect the filings necessary pursuant
to Rule 424(b) and will take such steps as it deems necessary to ascertain
promptly whether the form of prospectus transmitted for filing under Rule 424(b)
was received for filing by the Commission and, in the event that it was not, it
will promptly file such prospectus. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Underwriters notice
of its intention to file or prepare any amendment to the Registration Statement
or any amendment, supplement or revision to either the prospectus included in
the Registration Statement at the time it became effective or to the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Underwriters with copies of any such documents a reasonable amount of time prior
to such proposed filing or use, as the case may be (provided that the
Underwriters
10
agree to maintain such documents in confidence until the filing or use thereof),
and will not file or use any such document to which the Underwriters or counsel
for the Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Underwriters and counsel for the Underwriters, without
charge, signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Underwriters, without charge, a conformed
copy of the Registration Statement as originally filed and of each amendment
thereto (without exhibits) for each of the Underwriters. The copies of the
Registration Statement and each amendment thereto furnished to the Underwriters
will be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation
S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement and in the Prospectus. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Securities, any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Underwriters or for the
Company, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue statements
of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 3(b), such amendment or supplement
as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and the
Company will furnish to the Underwriters such number of copies of such amendment
or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use reasonable efforts, in
cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
as the Underwriters may designate and to maintain such qualifications in effect
for a period of not less than one year from the effective
11
date of the Registration Statement; provided, however, that the Company shall
not be obligated to file any general consent to service of process or to qualify
as a foreign corporation or as a dealer in securities in any jurisdiction in
which it is not so qualified or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so subject. In
each jurisdiction in which the Securities have been so qualified, the Company
will file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the effective date of the Registration Statement.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds".
(i) Listing. The Company will use its best efforts to effect the listing
of the Securities on the NYSE.
(j) Restriction on Sale of Securities. During a period of 90 days from
the date of the Prospectus, the Company will not, without the prior written
consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, directly or indirectly, (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of any share of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock or file any registration
statement under the 1933 Act with respect to any of the foregoing or (ii) enter
into any swap or any other agreement or any transaction that transfers, in whole
or in part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction is to be settled by delivery
of Common Stock or other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the Securities to be sold hereunder, (B) any
shares of Common Stock issued by the Company upon the exercise of an option or
warrant or the conversion of a security outstanding on the date hereof, (C) any
shares of Common Stock issued or options to purchase Common Stock granted
pursuant to employee benefit plans of the Company (including the Stock Option
Plan, and the Company's employee stock ownership plan and retirement savings
plan) existing on the date hereof or (D) any shares of Common Stock issued
pursuant to any nonemployee director stock plan or dividend reinvestment plan
existing on the date hereof.
(k) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of
12
each amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any agreement among underwriters and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriters, including
any stock or other transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Securities to the Underwriters, (iv) the fees
and disbursements of the Company's counsel, accountants and other advisors, (v)
the qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the blue sky survey and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus and of the Prospectus and any amendments or supplements
thereto, (vii) the preparation, printing and delivery to the Underwriters of
copies of the blue sky survey and any supplement thereto, (viii) the fees and
expenses of any transfer agent or registrar for the Securities and (ix) the fees
and expenses incurred in connection with the listing of the Securities on the
NYSE. The legal fees under clauses (v) and (vii) above that the Company shall be
required to bear shall not exceed $5,000.
(b) Termination of Agreement. If this Agreement is terminated by the
Underwriters in accordance with the provisions of Section 5(k) or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company delivered pursuant to the
provisions hereof, to the performance by the Company of its covenants and other
obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement
has become effective and at the Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission, and
any request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing the Rule 430A Information shall have been
filed with the Commission in accordance with Rule 424(b) (or a post-effective
amendment providing such information shall have been filed and declared
effective in accordance with the requirements of Rule 430A).
(b) Opinion of Counsel for Company. At the Closing Time, the
Underwriters shall have received an opinion of Goodsill ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇
LLP, counsel for the Company, dated as of the Closing Time, to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Hawaii, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus;
13
(ii) the Company has an authorized equity capitalization as set
forth in the Prospectus and all of the issued and outstanding shares of
capital stock of the Company have been duly and validly authorized and
issued and, other than awards of restricted stock under the Stock Option
Plan that have not yet vested, are fully paid and nonassessable;
(iii) to such counsel's knowledge, the Company does not itself
conduct any business or own or lease any property in any jurisdiction
outside the State of Hawaii that would require it to qualify to do
business as a foreign corporation and where the failure to be so
qualified would subject the Company to any material liability or
disability;
(iv) each Significant Subsidiary, other than ASB, has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation; ASB has been duly
formed and is duly chartered as a federal savings bank under the laws of
the United States; all of the issued and outstanding shares of capital
stock of each Significant Subsidiary has been duly and validly
authorized and issued and is fully paid and nonassessable; and, to such
counsel's knowledge, all of such shares, other than shares of preferred
stock of HECO and its subsidiaries and shares of the common stock of ASB
Realty Corporation, is owned directly or indirectly by the Company, free
and clear of any perfected encumbrance or security interest or any other
encumbrance, claim or equity, and with such exceptions as are described
in the Prospectus or as are otherwise disclosed to the Underwriters;
(v) the Company and HECO are holding companies as defined in the
Public Utility Holding Company Act of 1935, as amended; however, by
virtue of having filed an appropriate application under the provisions
of Section 3(a) of such Act, the Company and HECO are exempt from all of
the provisions of such Act except Section 9(a)(2) thereof, and will
remain so exempt, subject to the future timely filings of annual
exemption statements and such filings as are required by Section 33 of
such Act with respect to interests of the Company or Subsidiaries in any
foreign utility company, unless and except insofar as the Commission
shall find such exemption detrimental to the public interest or the
interest of investors or consumers;
(vi) except as indicated in the Prospectus, to the best of such
counsel's knowledge, (A) neither the Company nor any Significant
Subsidiary is engaged in, or threatened with, any litigation and (B)
there are no proceedings, or any proceedings threatened, with respect to
the Company or any Subsidiary or their property that, in the case of
either clause (A) or (B) above, such counsel (or other counsel as to
litigation or proceedings that are not principally handled by their
firm) has concluded is reasonably expected to have a material adverse
effect on the Company and the Subsidiaries taken as a whole (it being
understood that, for purposes of this opinion, "material" shall mean
having a financial effect on the Company in excess of $15,000,000);
(vii) neither the Company nor HEI Investments, Inc. is or, after
giving effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Prospectus, will
be an "investment company" or "controlled" by an "investment company,"
in each case within the meaning of the 1940 Act;
14
(viii) the Registration Statement, as of its effective date, and
the Prospectus, at the time it was filed with the Commission pursuant to
Rule 424(b) of the 1933 Act Regulations, complied as to form in all
material respects with the 1933 Act and the 1933 Act Regulations; each
document incorporated by reference in the Prospectus as originally filed
pursuant to the 1934 Act complied as to form when so filed in all
material respects with the 1934 Act and the 1934 Act Regulations; and,
to such counsel's knowledge, the Registration Statement has been
declared, and on the Closing Time is, effective under the 1933 Act and
no proceedings for a stop order with respect thereto are threatened or
pending under Section 8 of the 1933 Act;
(ix) nothing has come to the attention of such counsel to cause
them to believe that the Registration Statement, at its effective date,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, at the time it
was filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations or at the Closing Time, included or includes any untrue
statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements made therein, in the
light of the circumstances under which they were made, not misleading;
(x) this Agreement has been duly authorized by all necessary
corporate action of, and duly executed and delivered by, the Company;
(xi) the execution, delivery and performance of this Agreement
and any other agreement or instrument entered into or issued by the
Company in connection with the transactions contemplated hereby or in
the Registration Statement and the Prospectus (including the issuance
and sale of the Securities and the use of proceeds from the sale of the
Securities as described in the Prospectus under the caption "Use of
Proceeds") and the consummation of the transactions contemplated herein
and in the Registration Statement and the Prospectus and compliance by
the Company with its obligations hereunder do not and will not conflict
with or result in a breach of any of the terms or provisions of, or
constitute a default under, any material indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to such
counsel to which the Company or any Significant Subsidiary is a party or
by which the Company or any Significant Subsidiary is bound or to which
any of the material property or assets of the Company or any Significant
Subsidiary is subject, nor will such action result in any violation of
the provisions of the Company's charter or by-laws or any order, rule,
regulation or statute known to such counsel of any court or governmental
agency or body having jurisdiction over the Company or any Significant
Subsidiary or any of their properties, except that such counsel need not
express an opinion with respect to compliance with state securities or
blue sky law;
(xii) no authorization, approval, consent, license, order,
registration, qualification or decree of or with any court or
governmental authority or agency is necessary or required for the
performance by the Company of its obligations hereunder in connection
with the offering, issuance or sale of the Securities hereunder or the
consummation of the
15
transactions contemplated by this Agreement, except such as have been
already obtained or made or as may be required under state securities
laws;
(xiii) the Securities have been duly authorized by the Company
for issuance and sale to the Underwriters pursuant to this Agreement
and, when issued and delivered by the Company pursuant to this Agreement
against payment of the consideration set forth herein, will be validly
issued, fully paid and non-assessable; no holder of the Securities will
be subject to personal liability solely by reason of being such a
holder; and the issuance of the Securities is not subject to the
preemptive or other similar rights of any securityholder of the Company
or any of its Subsidiaries;
(xiv) the form of certificate used to evidence the Common Stock
complies in all material respects with all applicable statutory
requirements, with any applicable requirements of the charter and
by-laws of the Company and the requirements of the NYSE; and
(xv) the information in the Prospectus under the caption
"Description of Capital Stock" and in the Registration Statement under
Item 15, to the extent that it constitutes summaries of laws or the
Company's charter and by-laws, has been reviewed by such counsel and is
accurate in all material respects.
In rendering such opinion, (A) such counsel may state that it is expressing an
opinion only as to the federal laws of the United States and the laws of the
State of Hawaii, (B) such counsel may rely, as to matters of good standing and
valid existence and as to matters of fact, upon certificates of government
officials (provided that copies of such certificates will be furnished to
counsel for the Underwriters), (C) such counsel may rely, as to matters of fact,
upon certificates and representations of officers and employees of the Company
(provided that copies of such certificates will be furnished to counsel for the
Underwriters upon its request), (D) such counsel may rely, with respect to
matters involving litigation or proceedings not principally handled by such
counsel's firm, upon opinions and information upon which such counsel has been
permitted to rely by other counsel representing the Company in such litigation
or proceedings (provided that copies of such opinions are furnished to counsel
for the Underwriters), (E) such counsel may state that it has not been requested
to, and does not, express any opinion with respect to the financial statements
and notes thereto and the schedules and other financial data and information
included or incorporated by reference in the Registration Statement and the
Prospectus, (F) such counsel may state, with respect to the matters set forth in
paragraph (ix) above, that they have not independently verified and assume no
responsibility for the accuracy, completeness or fairness of the statements in
the Prospectus or in any document incorporated by reference therein, except
insofar as such statements relate to such counsel or as set forth in paragraph
(xv) above, (G) such counsel may state that, whenever such opinion is qualified
by the phrases "known to such counsel," "to the best of our knowledge," "to our
knowledge" or "nothing has come to our attention," or other phrases of similar
import, such phrases are intended to mean the actual knowledge of information by
the lawyers in such counsel's firm who have been principally involved in
drafting the Registration Statement and the Prospectus and supervising the
issuance, sale and delivery of the Securities and preparing the pertinent
documents and the lawyers having significant responsibility for the client
relationship with the Company and general transaction representation, but does
not include other information that
16
might be revealed if there were to be undertaken a canvass of all lawyers in
such counsel's firm, a general search of all files or any other type of
independent investigation (other than, with respect to the matters set forth in
paragraph (vi) above, such review of internal litigation files or inquiries of
other counsel as such counsel deems necessary), and (H) such counsel may include
therein such other customary qualifications reasonably acceptable to the
Underwriters and counsel for the Underwriters. References to the Registration
Statement and the Prospectus in this Section 5(b) shall include any amendments
or supplements thereto at the Closing Time.
(c) Opinion of Counsel for Underwriters. At the Closing Time, the
Underwriters shall have received the favorable opinion, dated as of the Closing
Time, of Pillsbury Winthrop LLP, counsel for the Underwriters, together with
signed or reproduced copies of such opinion for each of the other Underwriters
in form and substance satisfactory to the Underwriters. In giving such opinion
such counsel may rely, as to all matters governed by the laws of jurisdictions
other than the law of the State of New York and the federal law of the United
States, upon the opinions of counsel satisfactory to the Underwriters. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the Company and its Subsidiaries and certificates of public officials.
(d) Officers' Certificate. At the Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, except as may be set forth in or
contemplated by the Prospectus, 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, whether or not
arising in the ordinary course of business, and the Underwriters shall have
received a certificate of the President or a Vice President of the Company and
of the chief financial or chief accounting officer of the Company, dated as of
the Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly made at and as of
the Closing Time, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
the Closing Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are pending or, to the best knowledge of such officers, are
contemplated by the Commission.
(e) Accountants' Comfort Letter. At the time of the execution of this
Agreement, the Underwriters shall have received from KPMG LLP a letter dated
such date, in form and substance satisfactory to the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained or incorporated by
reference in the Registration Statement and the Prospectus.
(f) Bring-down Comfort Letter. At the Closing Time, the Underwriters
shall have received from KPMG LLP a letter, dated as of the Closing Time, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to Section 5(e) hereof, except that the specified date referred to shall be a
date not more than five business days prior to the Closing Time.
17
(g) Approval of Listing. At the Closing Time, the Securities shall have
been approved for listing on the NYSE, subject only to official notice of
issuance.
(h) Lock-up Agreements. At the date of this Agreement, the Underwriters
shall have received an agreement substantially in the form of Exhibit A hereto
signed by the persons listed on Schedule C hereto.
(i) Conditions to Purchase of Option Securities. In the event that the
Underwriters exercise their option provided in Section 2(b) hereof to purchase
all or any portion of the Option Securities, the representations and warranties
of the Company contained herein and the statements in any certificates furnished
by the Company or any Subsidiary hereunder shall be true and correct as of the
Date of Delivery and, at such Date of Delivery, the Underwriters shall have
received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company and of the
chief financial or chief accounting officer of the Company confirming
that the certificate delivered at the Closing Time pursuant to Section
5(d) hereof remains true and correct as of such Date of Delivery.
(ii) Opinion of Counsel for Company. The favorable opinion of
Goodsill ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, in form
and substance satisfactory to counsel for the Underwriters, dated such
Date of Delivery, relating to the Option Securities to be purchased on
such Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(b) hereof.
(iii) Opinion of Counsel for Underwriters. The favorable opinion
of Pillsbury Winthrop LLP, counsel for the Underwriters, dated such Date
of Delivery, relating to the Option Securities to be purchased on such
Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(c) hereof.
(iv) Bring-down Comfort Letter. A letter from KPMG LLP, in form
and substance satisfactory to the Underwriters and dated such Date of
Delivery, substantially in the same form and substance as the letter
furnished to the Underwriters pursuant to Section 5(f) hereof, except
that the "specified date" in the letter furnished pursuant to this
paragraph shall be a date not more than five business days prior to such
Date of Delivery.
(j) Additional Documents. At the Closing Time and at the Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of enabling them to
pass upon the issuance and sale of the Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Securities
as herein contemplated shall be satisfactory in form and substance to the
Underwriters and counsel for the Underwriters.
(k) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any
18
condition to the purchase of Option Securities, on a Date of Delivery which is
after the Closing Time, the obligations of the several Underwriters to purchase
the relevant Option Securities, may be terminated by the Underwriters by notice
to the Company at any time at or prior to the Closing Time or such Date of
Delivery, as the case may be, and such termination shall be without liability of
any party to any other party except as provided in Section 4 and except that
Sections 1, 6, 7 and 8 shall survive any such termination and remain in full
force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement
or alleged untrue statement of a material fact included in any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission provided that (subject to
Section 6(d) below) any such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇
▇▇▇▇▇), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) (as specified in Section 6(e) below); provided further, however, that
the indemnification contained in this
19
Section 6(a) with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling such
Underwriter) on account of any such loss, claim, damage, liability or expense
arising from the sale of the Securities by such Underwriter to any person if the
Company has established that a copy of the Prospectus shall not have been
delivered or sent to such person within the time required by the 1933 Act and
the 1933 Act Regulations, and the untrue statement or alleged untrue statement
or omission or alleged omission of a material fact contained in such preliminary
prospectus was corrected in the Prospectus, provided that the Company has
delivered the Prospectus to the several Underwriters in requisite quantity on a
timely basis to permit such delivery or sending.
(b) Indemnification of Company, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A Information or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) (as specified in Section 6(e) below).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or CIRCUMSTANCES. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii)
20
does not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
(e) Underwriter Information. The information set forth (i) in the first
two sentences of the first paragraph under the caption "Underwriting --
Commissions and Discounts", (ii) in the second sentence of the first paragraph
and the entire second paragraph under the caption "Underwriting -- Price
Stabilization and Short Positions" and (iii) under the caption "Underwriting --
Electronic Distribution", in each case, in the Registration Statement and the
Prospectus constitute the only information furnished to the Company by any
Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration
Statement, any preliminary prospectus or the Prospectus.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above, but also the
relative fault of the Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discount received by the Underwriters, in each case
as set forth on the cover of the Prospectus bear to the aggregate initial public
offering price of the Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative
21
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as such Underwriter, and each director of the Company,
each officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as the Company. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Initial Securities set forth opposite
their respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any Subsidiary
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company, and shall survive
delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Underwriters may terminate this Agreement,
by notice to the Company, at any time at or prior to the Closing Time (i) if
there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and the
Subsidiaries taken
22
as a whole, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any material adverse change in the financial markets in
the United States or in the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or the declaration
by the United States of a national emergency or war or any change or development
involving a prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to make it,
in the judgment of ▇▇▇▇▇▇▇ ▇▇▇▇▇, impracticable or inadvisable to market the
Securities or to enforce contracts for the sale of the Securities, or (iii) if
trading in any securities of the Company has been suspended or materially
limited by the Commission or the NYSE, or if trading generally on the American
Stock Exchange or the NYSE or in the Nasdaq National Market has been suspended
or materially limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or a material
disruption has occurred in commercial banking or securities settlement or
clearance services in the United States, or (iv) if a banking moratorium has
been declared by either Federal or New York or Hawaii State authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section 9, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at the Closing Time or the Date of Delivery to
purchase the Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Underwriters shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Underwriters shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Securities to be purchased on such date, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
Securities to be purchased on such date, this Agreement or, with respect to a
Date of Delivery which occurs after the Closing Time, the obligation of the
Underwriters to purchase and of the Company to sell the Option Securities to be
purchased and sold on such Date of Delivery, shall terminate without liability
on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
23
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Company to sell the relevant Option Securities,
as the case may be, either the Underwriters or the Company shall have the right
to postpone the Closing Time or the Date of Delivery, as the case may be, for a
period not exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements.
As used herein, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to ▇▇▇▇▇▇▇ ▇▇▇▇▇ at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇ ▇▇▇▇▇▇; and notices to the Company shall
be directed to Hawaiian Electric Industries, Inc. at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, attention of the Financial Vice President & Treasurer.
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriters and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 13. Governing Law and Time. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York. Specified
times of day refer to New York City time.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 15. Counterparts. This Agreement may be executed by any one or
more of the parties hereto in any number of counterparts, each of which shall be
an original, but all of such respective counterparts shall together constitute
one and the same instrument.
24
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
HAWAIIAN ELECTRIC INDUSTRIES, INC.
By
--------------------------------------
Name:
Title:
By
--------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇, SACHS & CO.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
BY: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:
---------------------------------------
Authorized Signatory
25
SCHEDULE A
Number of
Initial
Name of Underwriter Securities
------------------- ----------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated..........................................................
▇▇▇▇▇▇▇, Sachs & Co.....................................................
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated......................................
▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co......................................................
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc................................................
---------
Total.......................................................... 2,000,000
=========
Sch A-1
SCHEDULE B
HAWAIIAN ELECTRIC INDUSTRIES, INC.
2,000,000 Shares of Common Stock
(Without Par Value)
1. The initial public offering price per share for the Securities, shall
be $______.
2. The purchase price per share for the Securities to be paid by the
several Underwriters shall be $_____, being an amount equal to the initial
public offering price set forth above less $_____ per share; provided that the
purchase price per share for any Option Securities purchased upon the exercise
of the overallotment option described in Section 2(b) shall be reduced by an
amount per share equal to any dividends or distributions declared by the Company
and payable on the Initial Securities but not payable on the Option Securities.
Sch B-1
SCHEDULE C
List of persons subject to lock-up
Don E. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ I. T. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇
T. ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
A. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
Sch C-1
Exhibit A
March __, 2004
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇, SACHS & CO.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Proposed Public Offering by Hawaiian Electric
Industries, Inc.
Dear Sirs:
The undersigned, a stockholder and an officer and/or director of
Hawaiian Electric Industries, Inc., a Hawaii corporation (the "Company"),
understands that ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and the other underwriters named therein propose
to enter into a Purchase Agreement (the "Purchase Agreement") with the Company
providing for the public offering of shares (the "Securities") of the Company's
common stock, without par value (the "Common Stock"). In recognition of the
benefit that such an offering will confer upon the undersigned as a stockholder
and an officer and/or director of the Company, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned agrees with each underwriter named in the Purchase Agreement that,
during a period of 90 days from the date of the Purchase Agreement, the
undersigned will not, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇,
directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant for the sale of, or otherwise dispose of or
transfer any shares of Common Stock or any securities convertible into or
exchangeable or exercisable for Common Stock, whether now owned or hereafter
acquired by the undersigned or with respect to which the undersigned has or
hereafter acquires the power of disposition, or file any registration statement
under the Securities Act of 1933, as amended, with respect to any of the
foregoing or (ii) enter into any swap or any other agreement or any transaction
that transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of the Common Stock, whether any such swap or
transaction is to be settled by delivery of Common Stock or other securities, in
cash or otherwise.
Very truly yours,
Signature:
-----------------------------
Print Name:
-----------------------------
A-1