1,000,000 SHARES
COMMON STOCK
($2.50 PAR VALUE)
UNDERWRITING AGREEMENT
December __, 1996
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., ▇.▇.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated
c/o ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The undersigned, Southern California Water Company, a California
corporation (the "Company"), hereby addresses you as the "Underwriters"
and hereby confirms its agreement with you as follows:
1. DESCRIPTION OF SHARES. The Company proposes to issue and
sell to the Underwriters 1,000,000 shares of its Common Stock, par value
$2.50 per share (the "Firm Shares"). Solely for the purpose of covering
overallotments in the sale of the Firm Shares, the Company further
proposes to grant to the Underwriters the right to purchase up to an
additional 100,000 shares of its Common Stock, par value $2.50
per share (the "Option Shares"), as provided in Section 3 of this
Agreement. The Firm Shares and the Option Shares are herein
sometimes referred to as the "Shares" and are more fully
described in the Prospectus hereinafter defined.
2. PURCHASE, SALE AND DELIVERY OF FIRM SHARES.
On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein
set forth, the Company agrees to sell to the Underwriters, and
each such Underwriter agrees, severally and not jointly, (a) to
purchase from the Company, at a purchase price of $___ per share,
the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto and (b) to purchase from the
Company any additional number of Option Shares which such
Underwriter may become obligated to purchase pursuant to
Section 3 hereof.
The Company will deliver certificates for the Firm Shares at
the office of ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ("▇▇▇▇▇▇▇' Office"), or such other place as you and the
Company may mutually agree upon, for the accounts of the Underwriters
against payment to the Company of the purchase price for the Firm
Shares sold by it to the several Underwriters by wire transfer in
clearing house (same day available) funds payable to the order of
the Company. Such payment and delivery of funds shall occur at the
office of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, or at such other place as may be agreed upon between you
and the Company (the "Place of Closing"), at 11:00 a.m., New York
time, on December __, 1996, or at such other time and date not
later than three full business days thereafter as you and the
Company may agree, such time and date of payment and delivery
being herein called the "Closing Date."
The certificates for the Firm Shares so to be
delivered will be made available to you for inspection at
▇▇▇▇▇▇▇" Office (or such other place as you and the Company may
mutually agree upon) at least one full business day prior to the
Closing Date and will be in such names and denominations as you
may request at least two full business days prior to the Closing
Date.
It is understood that an Underwriter, individually, may
(but shall not be obligated to) make payment on behalf of the other
Underwriters whose payment shall not have been received prior to the
Closing Date for Shares to be purchased by such Underwriter. Any such
payment by an Underwriter shall not relieve the other Underwriters of any
of their obligations hereunder.
It is understood that the Underwriters propose to
offer the Shares to the public upon the terms and conditions set
forth in the Registration Statement hereinafter defined.
The Company has prepared and filed with the
Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as
amended, and the rules and regulations of the Commission
thereunder (collectively, the "Act"), a registration statement on
Form S-3 under the Act (the "registration statement"), including
a prospectus subject to completion relating to the Shares. The
term "Registration Statement" as used in this Agreement means the
registration statement (including all financial schedules and
exhibits), as amended at the time it becomes effective, or, if
the registration statement became effective prior to the
execution of this Agreement, as supplemented or amended prior to
the execution of this Agreement. If it is contemplated, at the
time this Agreement is executed, that a post-effective amendment
to the registration statement will be filed and must be declared
effective before the offering of the Shares may commence, the
term "Registration Statement" as used in this Agreement means the
registration statement as amended by said post-effective
amendment. The term "Prospectus" as used in this Agreement means
the prospectus in the form included in the Registration
Statement. Any reference to the Prospectus as amended or
supplemented means the Prospectus as amended or supplemented for
use in connection with the offering of the Shares in the form in
which it is filed with the Commission pursuant to Rule 424(b).
The term "Prepricing Prospectus" as used in this Agreement means
the prospectus subject to completion in the form included in the
registration statement at the time of the initial filing of the
registration statement with the Commission, and as such
prospectus shall have been amended or supplemented for use in
connection with the offering of the Shares from time to time
prior to the date of the Prospectus. Any reference in this
Agreement to the registration statement, the Registration
Statement, any Prepricing Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Act,
as of the date of the registration statement, the Registration
Statement, such Prepricing Prospectus or the Prospectus, as the
case may be, and any reference to any amendment or supplement to
the registration statement, the Registration Statement, any
Prepricing Prospectus or the Prospectus shall be deemed to refer
to and include any documents filed after such date under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
which, upon filing, are incorporated by reference therein, as
required by paragraph (b) of Item 12 of Form S-3. As used
herein, the term "Incorporated Documents" means the documents (or
the applicable portions thereof, if incorporated only in part)
which at the time are incorporated by reference in the
registration statement, the Registration Statement, any
Prepricing Prospectus, the Prospectus (as then amended as
supplemented), or any amendment or supplement thereto for use in
connection with the offering of the Shares.
3. PURCHASE, SALE AND DELIVERY OF THE OPTION SHARES.
The Company hereby grants an option to the Underwriters to purchase
from the Company up to 100,000 Option Shares on the same terms and
conditions as the Firm Shares; provided, however, that such option
may be exercised only for the purpose of covering any over-allotments
which may be made by them in the sale of the Firm Shares. No Option Shares
shall be sold or delivered unless the Firm Shares previously have been, or
simultaneously are, sold and delivered.
The option is exercisable on behalf of the several Underwriters by
you at any time, and from time to time, before the expiration of 30 days from
the date of this Agreement, for the purchase of all or part of the Option
Sharescovered thereby, by notice given by you to the Company in the
manner provided in Section 12 hereof, setting forth the number of Option
Shares as to which the Underwriters are exercising the option, and the
date of delivery of said Option Shares, which date shall not be more than eight
business days after such notice unless otherwise agreed to by the parties.
You may terminate the option at any time, as to any unexercised portion
thereof, by giving written notice to the Company to such effect.
You shall make such allocation of the Option Shares among the
Underwriters as may be required to eliminate purchases of fractional Shares.
Delivery of the Option Shares with respect to
which the option shall have been exercised shall be made to or
upon your order at ▇▇▇▇▇▇▇' Office (or at such other place as you
and the Company may mutually agree upon), against payment by you
of the per share purchase price to the Company by wire transfer
payable in clearing house (same day available) funds. Such
payment and delivery shall be made at 11:00 a.m., New York time,
on the date designated in the notice given by you as above
provided for, unless some other date and time are agreed upon,
which date and time of payment and delivery are called the
"Option Closing Date." The certificates for the Option Shares so
to be delivered will be made available to you for inspection at
▇▇▇▇▇▇▇' Office at least one full business day prior to the
Option Closing Date and will be in such names and denominations
as you may request at least two full business days prior to the
Option Closing Date. On the Option Closing Date, the Company
shall provide the Underwriters such representations, warranties,
opinions and covenants with respect to the Option Shares as are
required to be delivered on the Closing Date with respect to the
Firm Shares.
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE
COMPANY. (a) The Company represents and warrants to and agrees with
each Underwriter that:
(i) Each Prepricing Prospectus included as part of the
registration statement as originally filed or as part
of any amendment or supplement thereto, or filed
pursuant to Rule 424 under the Act, complied when so
filed in all material respects with the provisions of
the Act. The Commission has not issued any order
preventing or suspending the use of any Prepricing
Prospectus.
(ii) The Company and the transactions contemplated by this
Agreement meet the requirements for using Form S-3 under the
Act. The Registration Statement in the form in which it
became or becomes effective and also in such form as it may
be when any post-effective amendment thereto shall become
effective complied or will comply in all material respects
with the provisions of the Act and did not or will not at
any such times 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 as supplemented or amended
when filed with the Commission under Rule 424(b) under the
Act complied with or will comply in all material respects
with the provisions of the Act and did not or will not at
any such time 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, in
light of the circumstances under which they were made, not
misleading, except that this representation and warranty
does not apply to statements in or omissions from the
Registration Statement or the Prospectus made in reliance
upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by or on
behalf of any Underwriter through you expressly for use
therein.
(iii) The Incorporated Documents heretofore filed, when
they were filed (or, if any amendment with respect to any
such Incorporated Document was filed, when such amendment
was filed), conformed in all material respects with the
requirements of the Exchange Act and the rules and
regulations thereunder, and any further Incorporated
Documents so filed will, when they are filed, conform in all
material respects with the requirements of the Exchange Act
and the rules and regulations thereunder; no such
Incorporated Document when it was filed (or, if an amendment
with respect to any such Incorporated Document was filed,
when such amendment was filed), contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to
make the statements therein not misleading; and no such
further Incorporated Document, when it is filed, will
contain an untrue statement of a material fact or will omit
to state a material fact required to be stated therein or
necessary in order to make the statements therein not
misleading.
(iv) All the outstanding shares of the Company's Common
Stock, par value $2.50 per share (the "Common Shares"), have
been duly authorized and validly issued, are fully paid and
nonassessable and are free of any preemptive or similar
rights; the Shares have been duly authorized and, when
issued and delivered to you against payment therefor in
accordance with the terms hereof, will be validly issued,
fully paid and nonassessable and free of any preemptive or
similar rights; and the capital stock of the Company
conforms, in all material respects, to the description
thereof in the Registration Statement and the Prospectus.
(v) The Company is a corporation duly organized and validly
existing in good standing under the laws of the State of
California with full corporate power and authority to own,
lease and operate its properties and to conduct its business
as described in the Registration Statement and the
Prospectus, and is not required to be qualified as a foreign
corporation for the transaction of business under the laws
of any jurisdictions in which the consequences of a failure
to qualify, individually or in the aggregate, would have a
material adverse effect on the business of the Company.
(vi) There are no legal or governmental proceedings pending
or, to the knowledge of the Company, threatened, against the
Company, or to which the Company or any of its properties is
subject, that are required to be described in the
Registration Statement or the Prospectus but are not
described as required, and there are no agreements,
contracts, indentures, leases or other instruments that are
required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the
Registration Statement or any Incorporated Document that are
not described or filed as required by the Act or the
Exchange Act, as applicable.
(vii) The Company is not in violation of its articles of
incorporation or by-laws and has complied, in all respects
material to the Company, with any law, ordinance,
administrative or governmental rule or regulation applicable
to the Company or any decree applicable to the Company of
any court or governmental agency or body having jurisdiction
over the Company, and is not in default in any material
respect in the performance of any obligation, agreement or
condition contained in any material bond, debenture, note or
other evidence of indebtedness or in any material agreement,
lease or other instrument to which the Company is a party or
by which its properties are bound.
(viii) Neither the execution, delivery or performance of
this Agreement by the Company nor the issuance and sale of
the Shares contemplated hereby (1) requires any consent,
approval, authorization or other order of or registration or
filing with, any court, regulatory body, administrative
agency or other governmental body, agency or official on
the part of the Company (except (x) authorizations and
orders of the Public Utilities Commission of the State of
California, which have been obtained, are in full force and
effect and are sufficient to authorize the transactions
contemplated hereby and (y) such as may be required for the
registration of the Shares under the Act and compliance with
the Exchange Act and the securities or Blue Sky laws of
various jurisdictions) or (2) conflicts or will conflict
with the articles of incorporation or bylaws of the Company
or (3) conflicts or will conflict with or constitutes or
will constitute a breach of, or a default under, any
agreement, indenture, lease or other instrument to which the
Company is a party or by which it or any of its properties
may be bound, or violates or will violate any statute, law,
regulation or filing or judgment, injunction, order or
decree applicable to the Company or any of its properties,
or will result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the
Company pursuant to the terms of any agreement or instrument
to which it is a party or by which it may be bound or to
which any of its property or assets is subject.
(ix) The accountants, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who have
certified or shall certify the financial statements included
or incorporated by reference in the Registration Statement
and the Prospectus (or any amendment or supplement thereto),
are independent public accountants as required by the Act.
(x) The financial statements, together with related
schedules and notes, included or incorporated by reference
in the Registration Statement and the Prospectus (and any
amendment or supplement thereto for use in connection with
the offering of the Shares), present fairly the financial
position, results of operations and changes in financial
position of the Company on the basis stated in the
Registration Statement at the respective dates or for the
respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance
with generally accepted accounting principles consistently
applied throughout the periods involved, except as disclosed
therein; and the other financial and statistical information
and data included or incorporated by reference in the
Registration Statement and the Prospectus (and any amendment
or supplement thereto for use in connection with the
offering of the Shares) are accurately presented and to the
extent derived therefrom prepared on a basis consistent with
such financial statements and the books and records of the
Company.
(xi) The execution and delivery of, and the performance by
the Company of its obligations under, this Agreement have
been duly and validly authorized by the Company, and this
Agreement has been duly executed and delivered by the
Company and constitutes the valid and legally binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except as rights to indemnity and
contribution hereunder may be limited by federal or state
securities laws, and except as limited by bankruptcy,
insolvency, reorganization, moratorium or other laws or
equitable principles.
(xii) Except as disclosed in the Registration Statement
and the Prospectus (or any amendment or supplement thereto
for use in connection with the offering of the Shares),
subsequent to the respective dates as of which such
information is given in the Prospectus (or any amendment or
supplement thereto for use in connection with the offering
of the Shares), the Company has not incurred any liability
or obligation, direct or contingent, or entered into any
transaction, in each case other than in the ordinary course
of business, that is material to the Company, and there has
not been any change (other than pursuant to the Company's
Dividend Reinvestment and Common Share Purchase Plan and
Investment Incentive Program) in the capital stock, or
material increase in the short-term debt or long-term debt,
of the Company, or any material adverse change, or any
development involving, or which would reasonably be expected
to involve, a prospective material adverse change, in the
condition (financial or other), business, net worth or
results of operations of the Company.
(xiii) The Company has good and marketable title to all
property (real and personal) described in the Prospectus as
being owned by it, free and clear of all liens, claims,
security interests or other encumbrances except such as are
described in the Registration Statement and the Prospectus
or in a document filed as an exhibit to the Registration
Statement and except for liens, claims, security interests
or other encumbrances that would not, individually or in the
aggregate, have a material adverse effect on the business of
the Company; and all the property described in the
Prospectus as being held under lease by the Company is held
by it under valid, subsisting and enforceable leases except
in any respect that would not, individually or in the
aggregate, have a material adverse effect on the business of
the Company.
(xiv) The Company has such permits, licenses, franchises
and authorizations of governmental or regulatory authorities
("permits") as are necessary to own its properties and to
conduct its business, in all material respects, in the
manner described in the Prospectus, subject to such
qualifications as may be set forth in the Prospectus; the
Company has fulfilled and performed all its obligations with
respect to such permits where the failure to fulfill or
perform would have a material adverse effect on the business
of the Company and has no knowledge of the occurrence of any
event which, pursuant to the terms thereof, allows, or after
notice or lapse of time would allow, the early revocation or
termination thereof or results in any other material
impairment of the rights of the holder of any such permit,
subject in each case to such qualification as may be set
forth in the Prospectus.
(xv) No holder of any security of the Company has any right
to require registration of shares of Common Shares or any
other security of the Company because of the filing of the
registration statement or consummation of the transactions
contemplated by this Agreement.
(xvi) The Company is not an "investment company" or a
company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(a) 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
each Underwriter as to the matters covered thereby.
5. ADDITIONAL COVENANTS. The Company covenants and agrees
with the several Underwriters that:
(a) If, at the time this Agreement is executed and delivered,
it is necessary for the Registration Statement or a post-effective
amendment thereto to be declared effective before the offering of the
Shares may commence, the Company will endeavor to cause the Registration
Statement or such post-effective amendment to become effective as soon
as possible and will advise you promptly and, if requested by you, will
confirm such advice in writing, when the Registration Statement or
such post-effective amendment has become effective.
(b) The Company will advise you promptly and, if
requested by you, will confirm such advice in writing: (i)
of any request by the Commission for amendment of or a
supplement to the Registration Statement, any Prepricing
Prospectus or the Prospectus or for additional information;
(ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement
or of the suspension of registration and qualification of
the Shares for offering or sale in any jurisdiction or the
initiation of any proceeding for such purpose; and (iii)
within the period of time referred to in paragraph (f)
below, of any change in the Company's condition (financial
or other), business, prospects, properties, net worth or
results of operations, or of the happening of any event,
which, in each event, makes any statement of a material fact
made in the Registration Statement or the Prospectus (as
then amended or supplemented) untrue or which requires the
making of any additions to or changes in the Registration
Statement or the Prospectus (as then amended or
supplemented) in order to state a material fact required by
the Act to be stated therein or necessary in order to make
the statements therein not misleading, or of the necessity
to amend or supplement the Prospectus (as then amended or
supplemented) to comply with the Act or any other law. If
at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement,
or if a suspension of the registration and qualification of
the Shares for offering or sale in any jurisdiction shall
have occurred, the Company will make every reasonable effort
to obtain the withdrawal of such order at the earliest
possible time.
(c) The Company will furnish to you, without
charge, (i) four copies of the signed registration statement
as originally filed with the Commission and of each
amendment thereto, including financial statements and all
exhibits to the registration statement, (ii) such number of
conformed copies of the registration statement as originally
filed and of each amendment thereto, but without exhibits,
as you may reasonably request, (iii) such number of copies
of the Incorporated Documents, without exhibits, as you may
reasonably request, and (iv) four copies of the exhibits to
the Incorporated Documents.
(d) Prior to the Closing Date and during the time
referred to in the first sentence of Section 4(f), the
Company will not file any amendment to the Registration
Statement or make any amendment or supplement to the
Prospectus for use in connection with the offering of the
Shares or, prior to the Closing Date, file any document
which, upon filing, becomes an Incorporated Document, of
which you shall not previously have been advised or to
which, after you shall have received a copy of the document
proposed to be filed, you shall reasonably object; provided,
however, that the Company may file any such Incorporated
Document of which you should have been previously advised if
it has been advised by counsel that such filing is required
by applicable law.
(e) Prior to the execution and delivery of this
Agreement, the Company has delivered to you, without charge,
in such quantities as you have requested, copies of each
form of the Prepricing Prospectus. The Company consents to
the use, in accordance with the provisions of the Act and
with the securities or Blue Sky laws of the jurisdictions in
which the Shares are offered by you and by dealers, prior to
the date of the Prospectus, of each Prepricing Prospectus so
furnished by the Company.
(f) As soon after the execution and delivery of
this Agreement as possible and thereafter from time to time
for such period as in the opinion of your counsel a
prospectus is required by the Act to be delivered in
connection with sales by any Underwriter or dealer, the
Company will expeditiously deliver to each Underwriter and
each dealer, without charge, as many copies of the
Prospectus (and of any amendment or supplement thereto for
use in connection with the offering of the Shares) as you
may request. The Company consents to the use of the
Prospectus (and of any amendment or supplement thereto for
use in connection with the offering of the Shares) in
accordance with the provisions of the Act and with the
securities or Blue Sky laws of the jurisdictions in which
the Shares are offered by you and by all dealers to whom
Shares may be sold, both in connection with the offering and
sale of the Shares and for such period of time thereafter as
the Prospectus is required by the Act to be delivered in
connection with sales of Shares by you or any dealer. If
during such period of time any event shall occur that in the
judgment of the Company or in the opinion of your counsel is
required to be set forth in the Prospectus (as then amended
or supplemented) or should be set forth therein in order to
make the statements therein, in the light of the
circumstances under which they were made, not misleading, or
if it is necessary to supplement or amend the Prospectus (or
to file under the Exchange Act any document which, upon
filing, becomes an Incorporated Document) in order to comply
with the Act or any other law, the Company will forthwith
prepare and, subject to the provisions of paragraph (d)
above, file with the Commission an appropriate supplement or
amendment thereto (or to such document), and will
expeditiously furnish to you and dealers a reasonable number
of copies thereof. In the event that the Company and you
agree that the Prospectus should be amended or supplemented,
the Company, if requested by you, will promptly issue a
press release announcing or disclosing the matters to be
covered by the proposed amendment or supplement.
(g) The Company will cooperate with you and your
counsel in connection with the registration or qualification
of the Shares for offering and sale by you and by dealers
under the securities or Blue Sky laws of such jurisdictions
as you may designate and will file such consents to service
of process or other documents necessary or appropriate in
order to effect such registration or qualification; provided
that in no event shall the Company be obligated to qualify
to do business in any jurisdiction where it is not now so
qualified or to take any action which would subject it to
service of process in suits, other than those arising out of
the offering or sale of the Shares, in any jurisdiction
where it is not now so subject.
(h) The Company will make generally available to
its security holders an earnings statement, which need not
be audited, covering a twelve-month period commencing after
the effective date of the Registration Statement and ending
not later than 15 months thereafter, as soon as practicable
after the end of such period, which earnings statement shall
satisfy the provisions of Section 11(a) of the Act.
(i) During the period of three years hereafter,
the Company will furnish to you as soon as available, a copy
of each report of the Company mailed to shareholders or
filed with the Commission.
(j) The Company will apply the net proceeds from
the sale of the Shares substantially in accordance with the
description set forth in the Prospectus.
(k) Except as provided in this Agreement, the
Company will not sell, offer to sell or otherwise dispose
of, directly or indirectly, any Common Shares or any
securities convertible into or exercisable or exchangeable
for Common Shares or any other shares of capital stock of
the Company, or grant any options or warrants to purchase
Common Shares, other than shares issuable pursuant to a plan
for employees or shareholders in effect on the date hereof,
including the Company's Dividend Reinvestment and Common
Share Purchase Plan and Investment Incentive Program and
Common Shares issuable on exercise of options outstanding on
the date of this Agreement, for a period of 90 days after
the date of the Prospectus, without the prior written
consent of ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
(l) The Company will use its best efforts to have
the Common Shares which it agrees to sell under this
Agreement approved for listing, subject to notice of
issuance, on the New York Stock Exchange on or before the
Closing Date.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters to purchase and pay for the Shares,
as provided herein, shall be subject to the accuracy in all material
respects, as of the date hereof and as of the Closing Date
(and, if applicable, the Option Closing Date), of the representations
and warranties of the Company contained herein, to the performance in all
material respects by the Company of its covenants and obligations
hereunder, and to the following additional conditions:
(a) If, at the time this Agreement is executed and delivered,
it is necessary for the registration statement or a post-
effective amendment thereto to be declared effective before the
offering of the Shares may commence, the registration statement or
such post-effective amendment shall have become effective not later
than 5:30 P.M., New York City time, on the date hereof, or at such
later date and time as shall be consented to in writing by you,
and all filings relating to the Shares, if any, required by Rule 424
under the Act shall have been timely made; no stop order suspending
the effectiveness of the Registration Statement shall have been issued
and no proceeding for that purpose shall have been instituted or, to
the knowledge of the Company or the Underwriters, threatened by
the Commission, and any request of the Commission for additional
information (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to your
reasonable satisfaction.
(b) Subsequent to the effective date of this
Agreement, there shall not have occurred (i) any change, or
any development involving a prospective change, in or
affecting the condition (financial or other), business,
properties, net worth, or results of operations of the
Company not contemplated by the Prospectus, which in your
reasonable opinion would materially adversely affect the
market for the Shares or (ii) any event or development
relating to or involving the Company which makes any
statement made in the Prospectus untrue or which, in the
opinion of the Company and its counsel or the Underwriters
and their counsel, requires the making of any addition to or
change in the Prospectus in order to state a material fact
required by the Act or any other law to be stated therein or
necessary in order to make the statements therein not
misleading, if amending or supplementing the Prospectus to
reflect such event or development would, in your opinion,
materially adversely affect the market for the Shares.
(c) You shall have received on the Closing Date,
an opinion of O'Melveny & ▇▇▇▇▇ LLP, counsel for the
Company, dated the Closing Date and addressed to you, to the
effect that:
(i) The Company is a corporation duly
organized and validly existing as a corporation in good
standing under the laws of the State of California, with
full corporate power and corporate authority to own its
properties and to conduct its business as now being
conducted as described in the Prospectus (and any amendment or
supplement thereto for use in connection with the offering
of the Shares), including having the corporate power and
corporate authority to function as a water and electric
utility in the State of California;
(ii) The Company has authorized, issued and outstanding
capital stock as set forth in the Prospectus, except
that issued and outstanding capital stock in the
Prospectus does not reflect any Common Shares issued
after September 30, 1996 pursuant to the Company's
Dividend Reinvestment and Common Share Purchase Plan
and Investment Incentive Program, and all the issued
and outstanding Common Shares of the Company have been
duly and validly authorized and issued, are fully paid
and nonassessable. The Shares and the other capital
stock of the Company conform to the description thereof
under the caption "Description of Capital Shares" in
the Prospectus. The form of certificates for the
Shares to be delivered pursuant to this Agreement
conforms to the requirements of the California
Corporations Code and, when countersigned by the
Company's transfer agent and delivered to you or upon
your order against payment of the agreed consideration
therefor, in accordance with the provisions of this
Agreement, the shares represented thereby will be duly
authorized, validly issued, fully paid and
nonassessable and not subject to any preemptive rights;
(iii) The Commission has notified the Company that
the Registration Statement has become effective under
the Act, and, to such counsel's knowledge, no
proceedings for a stop order suspending the
effectiveness of the Registration Statement are pending
or threatened under the Act; the descriptions in the
Prospectus of contracts and other documents known to
such counsel are accurate in all material respects; to
such counsel's knowledge, there are no contracts or
documents which are required by the Act to be described
in the Registration Statement or the Prospectus, to be
incorporated by reference therein, or to be filed as
exhibits to the Registration Statement, which are not
described, incorporated or filed as required;
(iv) Except for the matters disclosed in, or
incorporated by reference into, the Registration
Statement, to such counsel's knowledge, there are no
pending or threatened actions, suits, proceedings or
investigations against the Company in any court or by
or before any arbitrator or governmental agency or
authority which are required by the Act to be disclosed
therein;
(v) This Agreement has been duly authorized, executed
and delivered by the Company;
(vi) The Company's execution and delivery of this
Agreement and the sale of Shares as contemplated by
this Agreement do not (a) violate the Company's
articles of incorporation or bylaws, (b) violate,
breach, or result in a default (or an event that with
notice or lapse of time or both would constitute a
default or event of acceleration) under, any existing
obligation of the Company under any material agreement
to which the Company is a party and known to such
counsel (the "Other Agreements"), (c) breach or
otherwise violate any existing obligation of the
Company under any material order, judgment or decree of
any California or federal court or governmental
authority binding on the Company and known to such
counsel, or (d) violate any California or federal
statute or regulation that such counsel has, in the
exercise of customary professional diligence,
recognized as directly applicable to the Company or to
transactions of the type contemplated by this
Agreement;
(vii) The California Public Utilities Commission
has duly authorized the issuance of the Shares and the
sale of the Shares, in each case as contemplated by the
Prospectus; such authorizations are still in full force
and effect and are sufficient pursuant to the
California Public Utilities Code for the issuance and
the sale of the Shares; assuming the Shares are issued
and sold in accordance with this Agreement, the
issuance and sale of the Shares is in conformity, in
all material respects, with the terms of such
authorization; and no other approval, authorization,
consent, certificate or order of any federal or other
state commission or regulatory authority, agency or
body is necessary on the part of the Company for the
issuance of the Shares and the sale of the Shares to
the Underwriters, except as may be required under the
Act or other securities or Blue Sky laws; and
(viii) Each document incorporated by reference in
the Prospectus as of the date the Prospectus was filed
with the Commission (other than the financial
statements and schedules and other financial and
statistical data contained therein or incorporated by
reference therein, as to which no opinion is expressed)
appeared on its face to comply when it was filed as to
form in all material respects with the requirements of
the Exchange Act and the rules and regulations
thereunder.
Such counsel shall state that in connection with their
participation in the preparation of the Registration Statement and the
Prospectus, such counsel has not independently verified the accuracy,
completeness or fairness of the statements contained or incorporated
therein, and the limitations inherent in the examination made by such
counsel and the knowledge available to such counsel are such that such
counsel is unable to assume, and does not assume, any responsibility
for the accuracy, completeness or fairness of the statements contained
or incorporated in the Registration Statement, the Prospectus or the
Incorporated Documents (except as otherwise specifically stated in
clauses (ii) and (iii) above). Such counsel also shall state, however,
that on the basis of such counsel's review of the Registration Statement,
the Prospectus and the Incorporated Documents and their participation in
conferences in connection with the preparation of the Registration Statement
and the Prospectus, and relying as to materiality to a large extent
upon opinions of officers of the Company, such counsel does not believe
that the Registration Statement and the Incorporated Documents, on the
date the Registration Statement was declared effective, contained 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 that such counsel does not believe that the Prospectus
and the Incorporate Documents, considered as a whole on the date of the
Prospectus and on the Closing Date, contained 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, in light of the circumstances
under which they were made, not misleading. Such counsel need
express no opinion or belief as to any document filed by the Company under
the Exchange Act, whether prior or subsequent to the effective date of the
Registration Statement, except the Incorporated Documents read together
with the Registration Statement or the Prospectus and considered as a whole,
nor any opinion or belief as to the financial statements and other financial
and statistical information included or incorporated by reference in the
Registration Statement, the Prospectus or the Incorporated Documents.
Such counsel shall also state that, subject to the
foregoing, they also advise the Representatives that, in
such counsel's opinion, the Registration Statement and the
Prospectus (except for the financial statements and other
financial data included or incorporated by reference
therein, as to which such counsel shall express no opinion)
as of the effective date of the Registration Statement and
as of the date hereof, appeared on their face to comply as
to form in all material respects with the requirements of
the Act and the applicable rules and regulations of the
Commission thereunder.
Such counsel's opinion shall be rendered in respect of the
laws of the State of California and the federal law of the United
States. Such counsel need not express any opinion regarding
Section 7 of this Agreement, any state securities laws or, except
as expressly stated in clauses (iii) and (viii) of the opinion, any
federal securities laws. Such counsel's opinion further may be
limited to laws recognized by such counsel, in the exercise
of customary professional diligence and through their
representation of the Company, as being applicable to the
Company and to the issuance and public sale of securities.
For purposes of the limitation in clauses (iii) and (iv)
above, such counsel's knowledge may be limited to the
current actual knowledge obtained by them in connection with
matters to which they have given substantive attention as
counsel for the Company, as determined from lawyers within
the firm who have performed services for the Company within
the prior twelve months.
(d) You shall have received on the Closing Date an opinion of ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriter, dated the Closing Date and
addressed to you to the effect that:
(i) The Shares have been duly authorized and
validly issued and are fully paid and nonassessable;
(ii) This Agreement has been duly and validly
authorized, executed and delivered by the Company;
(iii) The Registration Statement, as of its
effective date, and the Prospectus, as of its date
(other than the financial statements and other
financial and statistical information included therein,
as to which such counsel shall not be requested to and
shall not express any opinion) appeared on their face
to comply as to form in all material respects with the
requirements of Form S-3 under the Act; and
(iv) The Registration Statement is effective under the
Act and, to the best of such counsel's knowledge, no
proceedings for a stop order are pending or threatened
under the Act.
In rendering the foregoing opinion such counsel shall be
permitted to rely as to all matters of California law upon the opinion
of O'Melveny & ▇▇▇▇▇ LLP, counsel for the Company, described in the
foregoing paragraph (c).
Such counsel shall state that they have participated in
conferences with officers and other representatives of the Company,
counsel for the Company,representatives of the independent accountants
for the Company and the Representatives at which the contents of the
Registration Statement and Prospectus (including the
Incorporated Documents) and related matters were discussed;
and that, although such counsel are not passing upon and do
not assume any responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration
Statement and Prospectus, such counsel advises the
Representatives that, on the basis of the foregoing (relying
as to materiality to a large extent upon the opinions of
officers and other representatives of the Company), no facts
have come to their attention that would lead such counsel to
believe that either the Registration Statement (including
the Incorporated Documents), as of 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 (including the Incorporated Documents),
as of its 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,
in light of the circumstances under which they were made,
not misleading, except in each case as to the financial
statements and other financial and statistical information
included therein, as to which such counsel shall not be
requested to and shall not comment.
(e) You shall have received letters addressed to you,
and dated the date hereof and the Closing Date from ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP, independent certified public accountants, substantially
in the forms heretofore approved by you.
(f) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings
for that purpose shall have been taken or, to the knowledge of the
Company, shall be contemplated by the Commission at or prior to the Closing
Date; (ii) there shall not have been any change in the
capital stock of the Company nor any material increase in
the short-term or long-term debt of the Company (other than
in the ordinary course of business) from that set forth or
contemplated in the Registration Statement or the Prospectus
(or any amendment or Supplement thereto): (iii) there shall
not have been, since the respective dates as of which
information is given in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), except
as may otherwise be stated in the Registration Statement and
Prospectus (or any amendment or supplement thereto), any
material adverse change in the condition (financial or
other), business, prospects, properties, net worth or
results of operations of the Company; (iv) the Company shall
not have any liabilities or obligations, direct or
contingent (whether or not in the ordinary course of
business), that are material to the Company, other than
those reflected in the Registration Statement or the
Prospectus (or any amendment or supplement thereto for use
in connection with the offering of the Shares); and (v) all
the representations and warranties of the Company contained
in this Agreement shall in all material respects be true and
correct on and as of the date hereof and on and as of the
Closing Date as if made on and as of the Closing Date, and
you shall have received a certificate of the Company, dated
the Closing Date and signed on its behalf by the chief
executive officer and the chief financial officer of the
Company (or such other officers as are acceptable to you),
to the effect set forth in this Section 6(f) and in Section
6(g) hereof.
(g) The Company shall not have failed at or prior
to the Closing Date to have performed or complied with any
of its agreements herein contained and required to be
performed or complied with by it hereunder at or prior to
the Closing Date.
(h) Prior to the Closing Date, the Shares shall
have been approved for listing, subject to notice of
issuance, on the New York Stock Exchange.
(i) The Company shall have furnished or caused to
be furnished to you such further certificates and documents
as you shall have reasonably requested.
(j) There shall not have occurred any of the
following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock
Exchange or the American Stock Exchange, other than a
temporary suspension in trading to provide for an orderly
market, or the establishing on such exchanges by the
Commission or by such exchanges of minimum or maximum prices
which are not in force and effect on the date hereof; (ii) a
general moratorium on commercial banking activities declared
by either federal or state authorities; (iii) the outbreak
or escalation of hostilities involving the United States or
the declaration by the United States of a national emergency
or war, if the effect of any such event specified in this
clause (iii) in your judgment makes it impracticable or
inadvisable to proceed with the public offering or the
delivery of the Shares in the manner contemplated in the
Prospectus; (iv) any calamity or crisis, change in national,
international or world affairs, act of God, change in the
international or domestic markets, or change in the existing
financial, political or economic conditions in the United
States or elsewhere, if the effect of any such event
specified in this clause (iv) makes it impracticable or
inadvisable to proceed with the public offering or the
delivery of the Shares in the manner contemplated in the
Prospectus; or (v) the enactment, publication, decree, or
other promulgation of any federal or state statute,
regulation, rule, or order of any court or other
governmental authority, or the taking of any action by any
federal, state or local government or agency in respect of
fiscal or monetary affairs, if the effect of any such event
specified in this clause (v) in your judgment makes it
impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares in the manner
contemplated in the Prospectus.
All opinions, certificates, letters and documents will be in
compliance with the provisions hereof only if they are reasonably
satisfactory to you and counsel for the several Underwriters. The
Company will furnish you with such conformed copies of such opinions,
certificates, letters and documents as you may request.
If any of the conditions specified above in this
Section 6 shall not have been satisfied at or prior to the
Closing Date (and, if applicable, the Option Closing Date) or
waived by you in writing, this Agreement may be terminated by you
on notice to the Company.
7. INDEMNIFICATION. (a) The Company will indemnify and
hold harmless each Underwriter and each person, if any, who controls
any Underwriter within the meaning of the Act, against any losses,
claims, damages or liabilities, joint or several, to which such
Underwriter or such controlling person may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement
thereto, or arise out of or are 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, in
light of the circumstances under which they were made, not
misleading; and will reimburse each Underwriter and each such
controlling person for any legal or other expenses reasonably
incurred by such Underwriter or such controlling person in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company
shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, such
Preliminary Prospectus or the Prospectus, or such amendment or
supplement, in reliance upon and in conformity with written
information furnished to the Company by you or by any Underwriter
through you, specifically for use in the preparation thereof; and
provided, further, that if any Preliminary Prospectus or the
Prospectus contained any alleged untrue statement or allegedly
omitted to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading and such statement or omission shall have been
corrected in a revised Preliminary Prospectus or in the
Prospectus or in an amended or supplemented Prospectus, the
Company shall not be liable to any Underwriter or controlling
person under this subsection (a) with respect to such alleged
untrue statement or alleged omission to the extent that any such
loss, claim, damage or liability of such Underwriter or
controlling person results from the fact that such Underwriter
sold Shares to a person to whom there was not sent or given, at
or prior to the written confirmation of such sale, such revised
Preliminary Prospectus or Prospectus or amended or supplemented
Prospectus. This indemnity agreement shall be in addition to any
liabilities which the Company may otherwise have.
(b) Each Underwriter will indemnify and hold harmless the
Company, each of its directors, each of its officers who have signed
the Registration Statement and, each person, if any, who controls
the Company within the meaning of the Act, against any losses,
claims, damages or liabilities, joint or several, to which the
Company or any such director, officer or controlling person may
become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus, any amendment or
supplement thereto, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Registration
Statement, such Preliminary Prospectus or the Prospectus, such
amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by any such
Underwriter specifically for use in the preparation thereof; and
will reimburse any legal or other expenses reasonably incurred by
the Company or any such director, officer or controlling person
in connection with investigating or defending any such loss,
claim, damage, liability or action. This indemnity agreement
shall be in addition to any liabilities which the Underwriters
may otherwise have.
(c) Any party which proposes to assert the right
to be indemnified under this Section 7 shall, within ten days
after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim is to
be made against an indemnifying party under this Section 7,
notify each such indemnifying party of the commencement of such
action, suit or proceeding, enclosing a copy of all papers
served, but the omission so to notify such indemnifying party of
any such action, suit or proceeding shall not relieve such
indemnifying party from any liability which it may have to any
indemnified party otherwise than under this Section 7. In case
any such action, suit or proceeding shall be brought against any
indemnified party and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be
entitled to participate in, and, to the extent that it shall
wish, jointly with any other indemnifying party, similarly
notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party shall not
be liable to such indemnified party for any legal or other
expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection
with the defense thereof. The indemnified party shall have the
right to employ its own counsel in any such action, but the fees
and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of counsel by such
indemnified party at the expense of the indemnifying party has
been authorized by the indemnifying party, (ii) the indemnified
party shall have been advised by such counsel in a written
opinion that there may be a conflict of interest between the
indemnifying party and the indemnified party in the conduct of
the defense, or certain aspects of the defense, of such action
(in which case the indemnifying party shall not have the right to
direct the defense of such action with respect to those matters
or aspects of the defense on which a conflict exists or may exist
on behalf of the indemnified party) or (iii) the indemnifying
party shall not in fact have employed counsel to assume the
defense of such action, in any of which events such fees and
expenses to the extent applicable shall be borne by the
indemnifying party. An indemnifying party shall not be liable
for any settlement of any action or claim effected without its
consent. Each indemnified party, as a condition of such
indemnity, shall cooperate in good faith with the indemnifying
party in the defense of any such action or claim.
(d) If the indemnification provided for in this
Section 7 is for any reason, other than pursuant to the terms
thereof, judicially determined (by the entry of a final judgment
or decree by a court of competent jurisdiction and the expiration
of time to appeal or the denial of the last right to appeal) to
be unavailable to an indemnified party under subsections (a), (b)
or (c) above in respect of any losses, claims, damages or
liabilities (or actions 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 losses, claims,
damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits
received by the Company and the Underwriters from the offering of
the Shares. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable
law, then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as
is appropriate to reflect not only such relative benefits but
also the relative fault, as applicable, of the Company and the
Underwriters in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as other relevant equitable
considerations. The relative benefits received by, as
applicable, the Company and the Underwriters shall be deemed to
be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear
to the total underwriting discounts and commissions received by
the Underwriters, 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, among other things, whether the
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied
by the Company or the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and
the Underwriters agree that it would not be just and equitable if
contributions pursuant to this subsection (d) 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 subsection (d). The amount paid or
payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to
include 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
subsection (d), no Underwriter shall be required to contribute
any amount in excess of the underwriting discounts and
commissions applicable to the Shares purchased by such
Underwriter. 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' obligations
in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
8. REPRESENTATIONS AND AGREEMENTS
TO SURVIVE DELIVERY. All representations, warranties, and
agreements of the Company contained in Sections 7 and 11 herein
or in certificates delivered pursuant hereto, and the agreements
of the Underwriters contained in Section 7 hereof, shall remain
operative and in full force and effect regardless of any
termination or cancellation of this Agreement or any
investigation made by or on behalf of any Underwriter or any
controlling person, the Company or any of its officers, directors
or any controlling persons and shall survive delivery of the
Shares to the Underwriters hereunder.
9. SUBSTITUTION OF UNDERWRITERS. (a) If any
Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder, you may in your
discretion arrange for you or another party or other parties to
purchase such Shares on the terms contained herein. If within
thirty-six hours after such default by any Underwriter you do not
arrange for the purchase of such Shares, then the Company shall
be entitled to a further period of thirty-six hours within which
to procure another party or parties reasonably satisfactory to
you to purchase such Shares on such terms. In the event that,
within the respective prescribed periods, you notify the Company
that you have so arranged for the purchase of such Shares, or the
Company notifies you that it has so arranged for the purchase of
such Shares, you or the Company shall have the right to postpone
the Closing Date for a period of not more than seven days, in
order to effect whatever changes may thereby be made necessary in
the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file
promptly any amendments to the Registration Statement or the
Prospectus which in your opinion may thereby be made necessary.
The term "Underwriter" as used in this Agreement shall include
any persons substituted under this Section 9 with like effect as
if such person had originally been a party to this Agreement with
respect to such Shares.
(b) If, after giving effect to any
arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters made by you or the Company as
provided in subsection (a) above, the aggregate number of Shares
which remains unpurchased does not exceed one tenth of the total
Shares to be sold on the Closing Date, then the Company shall
have the right to require each nondefaulting Underwriter to
purchase the Shares which such Underwriter agreed to purchase
hereunder and, in addition, to require each nondefaulting
Underwriter to purchase its pro rata share (based on the number
of Shares which such Underwriter agreed to purchase hereunder) of
the Shares of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements
for the purchase of the Shares of a defaulting Underwriter or
Underwriters made by you or the Company as provided in subsection
(a) above, the number of Shares which remains unpurchased exceeds
one tenth of the total Shares to be sold on the Closing Date, or
if the Company shall not exercise the right described in
subsection (b) above to require the non-defaulting Underwriters
to purchase Shares of the defaulting Underwriter or Underwriters,
then this Agreement shall thereupon terminate, without liability
on the part of any non-defaulting Underwriter or the Company
except for the expenses to be borne by the Company and the
Underwriters as provided in Section 11 hereof and the indemnity
and contribution agreements in Section 7 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for
its default.
10. EFFECTIVE DATE AND TERMINATION. (a) This Agreement
shall become effective (i) upon the execution and delivery hereof
by the parties hereto, or (ii) if, at any time this Agreement is executed
and delivered, it is necessary for the registration statement or a
post-effective amendment thereto to be declared effective before the
offering of the Shares may commence, when notification of the effectiveness
of the registration statement or such post-effective amendment
has been released by the Commission; provided, however, that the
provisions of Section 7 and 11 shall at all times be effective.
(b) This Agreement may be terminated by you at any time before it
becomes effective in accordance with Section 10(a) by notice to the
Company; provided, however, that the provisions of this Section 10 and of
Section 7 and Section 11 hereof shall at all times be effective. In the
event of any termination of this Agreement pursuant to Section 9
hereof or this Section 10(b), the Company shall not then be under
any liability to any Underwriter except as provided in Section 7
or Section 11 hereof.
(c) This Agreement may be terminated by you at
any time at or prior to the Closing Date by notice to the Company
if any condition specified in Section 6 hereof shall not have
been satisfied on or prior to the Closing Date. Any such
termination shall be without liability of any party to any other
party except as provided in Sections 7 and 11 hereof.
(d) This Agreement also may be terminated by you,
by notice to the Company as to any obligation of the Underwriters
to purchase the Option Shares, if any condition specified in
Section 6 hereof shall not have been satisfied at or prior to the
Option Closing Date or as provided in Section 9 of this
Agreement.
If you terminate this Agreement as provided in
Sections 10(b), 10(c) or 10(d), you shall notify the Company by
telephone or telegram, confirmed by letter.
11. COSTS AND EXPENSES. The Company will bear and pay the costs and
expenses incident to the registration of the Shares and public offering thereof,
including, without limitation, (a) the fees and expenses of the
Company's accountants and the fees and expenses of counsel for
the Company, (b) the preparation, printing, filing, delivery and
shipping of the Registration Statement, each Preliminary
Prospectus, the Prospectus and any amendments or supplements
thereto (except as otherwise expressly provided in Sections 5(d)
and 5(f) hereof) and the printing or other processing, delivery
and shipping of this Agreement, the Agreement Among Underwriters,
the Selected Dealer Agreement, Underwriters' Questionnaires and
Powers of Attorney and Blue Sky Memoranda, (c) the furnishing of
copies of such documents (except as otherwise expressly provided
in Sections 5(d) and 5(f) hereof) to the Underwriters, (d) the
registration or qualification of the Shares for offering and sale
under the securities laws of the various states, including the
reasonable fees of Underwriters' counsel and disbursements
relating to such registration or qualification, (e) the fees
payable to the National Association of Securities Dealers, Inc.
(if any) and the Commission in connection with their review of
the proposed offering of the Shares, (f) all printing and
engraving costs related to preparation of the certificates for
the Shares, including transfer agent and registrar fees, (g) all
initial transfer taxes, if any, (h) all fees and expenses
relating to the authorization of the Shares for trading on the
New York Stock Exchange, (i) all travel expenses, including air
fare and accommodation expenses, of representatives of the
Company in connection with the offering of the Shares and (j) all
of the other costs and expenses incident to the performance by
the Company of the registration and offering of the Shares;
provided, however, that the Underwriters will bear and pay the
fees and expenses of the Underwriters' counsel (other than fees
and disbursements relating to the registration or qualification
of the Shares for offering and sale under the securities laws of
the various states), the Underwriters' out-of-pocket expenses,
and any advertising costs and expenses incurred by the
Underwriters incident to the public offering of the Shares.
If this Agreement is terminated by you in accordance with the
provisions of Section 10(c), other than for failure of the condition
set forth in Section 6(j), the Company shall reimburse the Underwriters
for all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel to the Underwriters.
12. NOTICES. All notices or communications hereunder, except
as herein otherwise specifically provided, shall be in writing and
if sent to the Underwriters shall be mailed, delivered, sent by
facsimile transmission, or telegraphed and confirmed c/o ▇.▇. ▇▇▇▇▇▇▇ & Sons,
Inc. at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Syndicate, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇, or if sent to the
Company shall be mailed, delivered, sent by facsimile
transmission, or telegraphed and confirmed to the Company at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ III, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇; with a
copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq., O'Melveny & ▇▇▇▇▇ LLP, ▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, facsimile
number (▇▇▇) ▇▇▇-▇▇▇▇. Notice to any Underwriter pursuant to
Section 7 shall be mailed, delivered, sent by facsimile
transmission, or telegraphed and confirmed to such Underwriter's
address as it appears in the Underwriters' Questionnaire
furnished in connection with the offering of the Shares or as
otherwise furnished to the Company.
13. PARTIES. This Agreement shall inure to the
benefit of and be binding upon the Underwriters and the Company
and their respective successors and assigns. Nothing expressed
or mentioned in this Agreement is intended or shall be construed
to give any person, corporation or other entity, other than the
parties hereto and their respective successors and assigns and
the controlling persons, officers and directors referred to in
Section 7, 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 being
intended to be and being for the sole and exclusive benefit of
the parties hereto and their respective successors and assigns
and said controlling persons and said officers and directors, and
for the benefit of no other person, corporation or other entity.
No purchaser of any of the Shares from any Underwriter shall be
construed a successor or assign by reason merely of such
purchase.
In all dealings with the Company
under this Agreement you shall act on behalf of each of the
several Underwriters. The Company shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf
of the Underwriters, made or given by you on behalf of the
Underwriters, as if the same shall have been made or given in
writing by the Underwriters.
14. 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 deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
15. PRONOUNS. Whenever a pronoun of any gender
or number is used herein, it shall, where appropriate, be deemed
to include any other gender and number.
16. APPLICABLE LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
If the foregoing is in accordance with your
understanding, please so indicate in the space provided below for
that purpose, whereupon this letter shall constitute a binding
agreement among the Company and the Underwriters.
SOUTHERN CALIFORNIA WATER COMPANY
By: _____________________________
Name:
Title:
Accepted as of the date first above
written, on behalf of ourselves.
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & CO., ▇.▇.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, INCORPORATED
By: ▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
By: _________________________
Name:
Title:
SCHEDULE I
Number of
Name Firm Shares
A.G. ▇▇▇▇▇▇ & Sons, Inc. . . . . . . . . . . . .
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P. .. . . . . . . . . .
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated . . . . . .
___________
Total 1,000,000
___________