El Paso Corporation Common Stock, par value $3 per share Underwriting Agreement
Exhibit
1.A
El
Paso Corporation
Common
Stock, par value $3 per share
May
23, ▇▇▇▇
▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ Securities LLC
As
representatives
(“Representatives”) of the
several
Underwriters named in Schedule I hereto,
▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
El
Paso Corporation, a Delaware corporation (the “Company”),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the “Underwriters”) an aggregate
of 35,700,000 shares (the “Shares”) of Common Stock, par value $3 per share,
(“Stock”) of the Company.
To
the extent there is only one Underwriter named in Schedule I
hereto, the terms “Representatives” and “Underwriters” as used herein shall mean
such Underwriter.
1. The
Company represents and warrants to, and agrees with,
each of the Underwriters that:
(a) An
“automatic
shelf registration statement” as defined
under Rule 405 under the Securities Act of 1933, as amended (the “Act”) on Form
S-3 (File No. 333-134406 in respect of the Shares has been filed with the
Securities and Exchange Commission (the “Commission”) not earlier than three
years prior to the date hereof; such registration statement, and any
post-effective amendment thereto, became effective on filing; and no stop order
suspending the effectiveness of such registration statement or any part thereof
has been issued and no proceeding for that purpose has been initiated or
threatened by the Commission, and no notice of objection of the Commission
to
the use of such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Act has been received by the Company (the
base prospectus filed as part of such registration statement, in the form in
which it has most recently been filed with the Commission on or prior to the
date of this Agreement, is hereinafter called the “Basic Prospectus”; any
preliminary prospectus (including any preliminary prospectus supplement)
relating to the Shares filed with the Commission pursuant to Rule 424(b) under
the Act is hereinafter called a “Preliminary Prospectus”; the various parts of
such registration statement, including all exhibits thereto but excluding Form
T-1 and including any prospectus supplement relating to the Shares that is
filed
with the Commission and deemed by virtue of Rule 430B under the Act to be part
of such registration statement, each as amended at the time such part of the
registration statement became effective, are hereinafter collectively called
the
“Registration Statement”; the Basic Prospectus, as amended and supplemented
immediately prior to the Applicable Time (as defined in Section 1(c) hereof),
is
hereinafter called the “Pricing Prospectus”; the form of the final prospectus
relating to the Shares filed with the Commission pursuant to Rule 424(b) under
the Act in accordance with Section 5(a) hereof is hereinafter called the
“Prospectus”; any reference herein to the Basic Prospectus, the Pricing
Prospectus, any Preliminary 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 such prospectus; any
reference to any amendment or supplement to the Basic Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
any post-effective amendment to the Registration Statement, any prospectus
supplement relating to the Shares filed with the Commission pursuant to Rule
424(b) under the Act and any documents filed under the Securities Exchange
Act
of 1934, as amended (the “Exchange Act”), and incorporated therein, in each case
after the date of the Basic Prospectus, such Preliminary Prospectus or the
Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any annual report
of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act
after the effective date of the Registration Statement that is incorporated
by
reference in the Registration Statement; and any “issuer free writing
prospectus” as defined in Rule 433 under the Act relating to the Shares is
hereinafter called an “Issuer Free Writing Prospectus”);
(b) No
order preventing or suspending the use of any
Preliminary Prospectus or any Issuer Free Writing Prospectus has been issued
by
the Commission, and each Preliminary Prospectus, at the time of filing thereof,
conformed in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder, and did not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of
the
circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished
in
writing to the Company by an Underwriter through one or more of the
Representatives expressly for use therein;
(c) For
the purposes of this Agreement, the “Applicable Time”
is 4:10 p.m. (Eastern time) on the date of this Agreement (which you have
informed the Company is a time prior to the time of the first sale of the Shares
by any Underwriter). The Pricing Prospectus, as of the Applicable Time, did
not
include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and each Issuer Free
Writing Prospectus listed on Schedule II(a) hereto does not conflict with
the information contained in the Registration Statement, the Pricing Prospectus
or the Prospectus and each such Issuer Free Writing Prospectus, as supplemented
by and taken together with the Pricing Prospectus as of the Applicable Time,
did
not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to statements or omissions
made in reliance upon and in conformity with information furnished in writing
to
the Company by an Underwriter through one or more of the Representatives
expressly for use therein;
(d) The
documents incorporated by reference in the Pricing
Prospectus and the Prospectus, when they became effective or were filed with
the
Commission, as the case may be, conformed in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents 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; and any further documents so filed and incorporated by reference
in
the Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the case may
be,
will conform in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder 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; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by
an Underwriter through one or more of the Representatives expressly for use
therein; and no such documents were filed with the Commission since the
Commission’s close of business on the business day immediately prior to the date
of this Agreement and prior to the execution of this Agreement, except as set
forth on Schedule II(b) hereto;
(e) The
Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration Statement and
the
Prospectus will conform, in all material respects to the requirements of the
Act
and the rules and regulations of the Commission thereunder and do not and will
not, as of the applicable effective date as to each part of the Registration
Statement and as of the applicable filing date as to the Prospectus and any
amendment or supplement thereto, 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; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made
in reliance upon and in conformity with information furnished in writing to
the
Company by an Underwriter through one or more of the Representatives expressly
for use therein;
(f) The
Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
the
corporate power and authority to own its properties and conduct its business
as
described in the Pricing Prospectus; each of the subsidiaries of the Company
set
forth in Schedule III hereto (each, a “Significant Subsidiary” and collectively,
the “Significant Subsidiaries”), has been duly incorporated or formed, as the
case may be, and is an existing corporation, limited liability company or
limited partnership in good standing under the laws of the jurisdiction of
its
incorporation or formation, as the case may be, with the corporate or other
power and authority to own its properties and conduct its business as described
in the Pricing Prospectus; and each of the Company and its Significant
Subsidiaries is duly qualified to transact business as a foreign corporation,
limited liability company or limited partnership in good standing in all other
jurisdictions in which the conduct of its business requires such qualification,
except to the extent that the failure to be so qualified would not have a
material adverse effect on the financial condition, business, properties or
results of operations of the Company and its subsidiaries, taken as a whole
(a
“Material Adverse Effect”);
(g) The
outstanding equity interests of each of the Company’s
Significant Subsidiaries have been duly authorized and validly issued, are
fully
paid and non-assessable and are owned by the Company or another subsidiary
of
the Company free and clear of all liens, claims, or adverse interests of any
nature, except for the equity interests of ANR Pipeline Company, El Paso Natural
Gas Company, Tennessee Gas Pipeline Company and Colorado Interstate Gas Company
that are pledged pursuant to that certain Amended and Restated Security
Agreement, dated as of November 23, 2004, among the Company and the other
parties thereto;
(h) This
Agreement has been duly authorized, executed and
delivered by the Company and conforms to the description thereof contained
in
the Pricing Prospectus in all material respects;
(i) The
financial statements of the Company contained or
incorporated by reference in the Pricing Prospectus and the Prospectus present
fairly in all material respects the consolidated financial position of the
Company and its consolidated subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown and, except as
otherwise disclosed in the Pricing Prospectus, such consolidated financial
statements have been prepared in conformity with generally accepted accounting
principles in the United States applied on a consistent basis;
(j) PricewaterhouseCoopers
LLP, who have certified certain
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement, the Pricing Prospectus
and the Prospectus, were independent public accountants as required by the
Act
and the applicable rules and regulations thereunder as of May 5, 2006 and for
the periods covered by such financial statements; Ernst & Young LLP are
independent public accountants with respect to the Company and its subsidiaries
as required by the Act and the applicable rules and regulations
thereunder;
(k) Except
as disclosed in the Pricing Prospectus, there are
no pending legal or governmental actions, suits or proceedings against or
affecting the Company, any of its subsidiaries or any of their respective
properties that, if determined adversely to the Company or any of its
Significant Subsidiaries would, individually or in the aggregate, have a
Material Adverse Effect, or would materially and adversely affect the ability
of
the Company to perform its obligations under this Agreement, or which are
otherwise material in the context of the sale of Shares; and no such actions,
suits or proceedings are, to the Company’s knowledge, threatened or
contemplated;
(l) Except
as disclosed in the Pricing Prospectus, the
Company and its Significant Subsidiaries have good and indefeasible title to
all
real properties and all other properties and assets owned by them, in each
case
free from liens, encumbrances and defects that would materially affect the
value
of such properties, taken as a whole, or materially interfere with the use
made
or to be made of such properties, taken as a whole, by the Company and/or its
Significant Subsidiaries; and, except as disclosed in the Pricing Prospectus,
the Company and its Significant Subsidiaries hold any leased real or personal
property under valid and enforceable leases with no exceptions that would
materially interfere with the use made or to be made of such properties, taken
as a whole, by the Company and/or its Significant Subsidiaries;
(m) Except
as disclosed in the Pricing Prospectus, since the
date of the latest audited financial statements incorporated by reference in
the
Pricing Prospectus, there has been no material adverse change, or any
development or event involving a prospective material adverse change, in the
financial condition, business, properties or results of operations of the
Company and its subsidiaries, taken as a whole (a “Material Adverse
Change”);
(n) Neither
the Company nor any of its Significant
Subsidiaries is or, with the giving of notice or lapse of time or both, will
be,
(i) in violation of its charter, bylaws or similar organizational documents,
(ii) in default in the performance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, lease or other agreement or
instrument that is material to the Company and its subsidiaries, taken as a
whole, or to which the Company or any Significant Subsidiary or their respective
properties are bound (collectively, “Contracts”), (iii) in default in the
performance of any obligation, agreement, covenant or condition contained in
the
$3,000,000,000 Amended and Restated Credit Agreement, dated as of November
23,
2004, among the Company, certain subsidiaries of the Company party thereto
and
the lenders party thereto (the “Credit Agreement”) and except in the case of the
foregoing clause (ii) for any such defaults as would not, individually or in
the
aggregate, have a Material Adverse Effect;
(o) The
execution, delivery and performance by the Company of
this Agreement, the issuance and sale of the Shares by the Company and the
consummation of the transactions contemplated herein, do not and will not result
in a breach or violation of any of the terms or provisions of, or constitute
a
default under, (i) any statute, rule, regulation or order of any governmental
agency or body or any court, domestic or foreign, having jurisdiction over
the
Company or any Significant Subsidiary or any of their properties, (ii) any
Contract, (iii) the Credit Agreement, or (iv) the charter, bylaws or similar
organizational documents of the Company or any such Significant Subsidiary,
except in the case of the foregoing clauses (i) and (ii) for any such breaches
or violations as would not, individually or in the aggregate, have a Material
Adverse Effect or adversely affect the transactions contemplated by this
Agreement in any material respect;
(p) The
Company and each of its Significant Subsidiaries hold
all material licenses, certificates and permits from governmental authorities
which are necessary to the conduct of their businesses, except as would not,
individually or in the aggregate, have a Material Adverse Effect;
(q) Except
for such actions as may be required to qualify the
Shares under state securities or “Blue Sky” laws, no consent, approval,
authorization or order of, or filing or registration or qualification of or
with, any court or governmental agency or body is required for the execution,
delivery and performance by the Company of this Agreement, the issuance and
sale
of the Shares by the Company pursuant to this Agreement and the consummation
of
the transactions contemplated hereby;
(r) The
Company is not, and after giving effect to the
offering and sale of the Shares and the application of the net proceeds thereof,
will not be, an “investment company” required to be registered under the
Investment Company Act of 1940, as amended (the “Investment Company Act”);
(s) Except
as disclosed in the Pricing Prospectus, the
Company is not aware of any (i) failure on its part to maintain effective
disclosure controls and procedures and internal control over financial
reporting, each as defined in Rule 13a-15 under the Exchange Act, (ii) material
weakness (as described in Auditing Standard No. 2 promulgated by the Public
Company Accounting Oversight Board) in the Company's internal control over
financial reporting (regardless of whether remediated) or (iii) change in the
Company's internal control over financial reporting that has materially
adversely affected, or is reasonably likely to materially adversely affect,
the
Company's internal control over financial reporting;
(t) Except
as disclosed in the Pricing Prospectus, neither
the Company nor any of its subsidiaries is in violation of any statute, rule,
regulation, decision or order of any governmental agency or body or any court,
domestic or foreign, relating to the use, disposal or release of hazardous
or
toxic substances, the protection or restoration of the environment or human
exposure to hazardous or toxic substances (collectively, “environmental laws”),
owns or operates or, to the knowledge of the Company, previously owned or
operated any real property contaminated with any substance that is subject
to
any environmental laws, or is liable for any off-site disposal or contamination
pursuant to any environmental laws, except for any such violations,
contaminations, liabilities or claims as would not, individually or in the
aggregate, have a Material Adverse Effect;
(u) The
Company and each of its Significant Subsidiaries
carry, or are covered by, insurance in such amounts and covering such risks
as
is adequate for the conduct of their respective businesses and the value of
their respective properties and as is customary for companies engaged in similar
businesses, except as would not, individually or in the aggregate, have a
Material Adverse Effect;
(v) There
are no business relationships or related-party
transactions involving the Company or any of its subsidiaries or any other
person required to be described by the Company in its Annual Report on Form
10-K
for the year ended December 31, 2005 pursuant to Item 404 of Regulation S-K
under the Act which have not been described as required;
(w) The
Company is in compliance with Section 402 of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), as it relates to loans,
in all material respects and has made all certifications required to be made
pursuant to Section 302 and Section 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act;
(x) No
holder of securities of the Company is entitled to
have such securities registered under the Registration Statement;
(y) The
statements set forth in the Pricing Prospectus and
the Prospectus under the captions “Description of Capital Stock,” “Plan of
Distribution” and “Underwriting,” insofar as such statements purport to
summarize certain provisions of the laws and documents referred to therein,
fairly summarize such provisions in all material respects;
(z) The
Company has all requisite corporate power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. The Company has duly taken all necessary corporate action to
authorize the execution, delivery and performance of this Agreement;
(aa) Neither
the Company nor, to the Company’s knowledge, any
of its affiliates, has taken or may take, directly or indirectly, any action
intended to cause or result in the stabilization or manipulation of the price
of
the Shares or the Company’s other securities;
(bb) The
outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable and conform to the description of the Stock contained in the
Pricing Prospectus and Prospectus; none of the outstanding shares of capital
stock of the Company was issued in violation of any preemptive or similar rights
of any stockholder of the Company; the Shares have been duly authorized, and
when issued and delivered will be validly issued, fully paid and non-assessable;
and no preemptive or similar rights of stockholders exist with respect to any
of
the Shares;
(cc) As
of May 3, 2006, the Company had an authorized
capitalization as set forth in the Pricing Prospectus; since May 3, 2006, the
authorized capitalization of the Company has not changed in any material
respect; and all of the Shares conform to the description thereof contained
in
the Pricing Prospectus in all material respects;
(dd) Except
as disclosed in the Pricing Prospectus, there are
no outstanding securities of the Company convertible into, exchangeable for
or
evidencing the right to purchase or subscribe for any shares of capital stock
of
the Company and there are no outstanding or authorized options, warrants or
rights of any character obligating the Company to issue any shares of its
capital stock or any securities convertible or exchangeable into or evidencing
the right to purchase or subscribe for any shares of such stock;
(ee) (A)
(i) At the time of filing the Registration
Statement, (ii) at the time of the most recent amendment thereto for the
purposes of complying with Section 10(a)(3) of the Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant to Section
13 or 15(d) of the Exchange Act or form of prospectus), and (iii) at the time
the Company or any person acting on its behalf (within the meaning, for this
clause only, of Rule 163(c) under the Act) made any offer relating to the Shares
in reliance on the exemption of Rule 163 under the Act, the Company was a
“well-known seasoned issuer” as defined in Rule 405 under the Act; and (B) at
the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a bona fide offer (within the
meaning of Rule 164(h)(2) under the Act) of the Shares, the Company was not an
“ineligible issuer” as defined in Rule 405 under the Act; and
(ff) The
Company (x) has been subject to the requirements of
Section 12 or 15(d) of the Exchange Act and has filed all the material required
to be filed pursuant to Sections 13, 14 or 15(d) of the Exchange Act for a
period of at least thirty-six calendar months immediately preceding the date
of
this Agreement and (y) has filed in a timely manner all reports required to
be
filed during the twelve calendar months and any portion of a month immediately
preceding the date of this Agreement.
2. Subject
to the terms and conditions herein set forth, the
Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company,
at
a purchase price per share of $14.025, the number of Shares set forth opposite
the name of such Underwriter in Schedule I hereto.
3. Upon
the authorization by you of the release of
the Shares, the several Underwriters propose to offer the
Shares for sale upon the terms and conditions set forth in the Prospectus.
4. (a) The
Shares to be purchased by each Underwriter
hereunder, in definitive form, and in such authorized denominations and
registered in such names as the Representatives may request upon at least
forty-eight hours’ prior notice to the Company shall be delivered by or on
behalf of the Company to the Representatives, through the facilities of the
Depository Trust Company (“DTC”), for the account of such Underwriter, against
payment by or on behalf of such Underwriter of the purchase price therefor
by
wire transfer of Federal (same-day) funds to the account specified by the
Company to the Representatives at least forty-eight hours in advance. The
Company will cause the certificates representing the Shares to be made available
for checking and packaging at least twenty-four hours prior to the Time of
Delivery (as defined below) with respect thereto at the office of DTC or its
designated custodian (the “Designated Office”). The time
and date of such delivery and payment shall be 9:30 a.m., New York City time,
on
May 26, 2006 or such other time and date as the Representatives and the Company
may agree upon in writing. Such time and date for delivery of the Shares is
herein called the “Time of Delivery”.
(b) The
documents to be delivered at the Time of Delivery by
or on behalf of the parties hereto pursuant to Section 8 hereof, including
the
cross receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 8(j) hereof, will be delivered at the offices
of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (the
“Closing Location”), and the Shares will be delivered at the Designated Office,
all at the Time of Delivery. A meeting will be held at the Closing Location
at
3:00 p.m., New York City time, on the New York Business Day next preceding
the
Time of Delivery, at which meeting the final drafts of the documents to be
delivered pursuant to the preceding sentence will be available for review by
the
parties hereto. For the purposes of this Section 4, “New York Business Day”
shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a
day on which banking institutions in New York are generally authorized or
obligated by law or executive order to close.
5. The
Company agrees with each of the Underwriters:
(a) To
prepare the Prospectus in a form approved by you and
to file such Prospectus pursuant to Rule 424(b) under the Act not later than
the
Commission's close of business on the second business day following the
execution and delivery of this Agreement; to make no further amendment or any
supplement to the Registration Statement, the Basic Prospectus or the Prospectus
prior to the Time of Delivery which shall be disapproved by you promptly after
reasonable notice thereof; to advise you, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement has been
filed or becomes effective or any amendment or supplement to the Prospectus
has
been filed and to furnish you with copies thereof; to file promptly all other
material required to be filed by the Company with the Commission pursuant to
Rule 433(d) under the Act; to file promptly all reports and any definitive
proxy
or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the delivery of
a
prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under
the
Act) is required in connection with the offering or sale of the Shares; to
advise you, promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use
of
any Preliminary Prospectus or other prospectus in respect of the Shares, of
any
notice of objection of the Commission to the use of the Registration Statement
or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the
Act, of the suspension of the qualification of the Shares for offering or sale
in any jurisdiction, of the initiation or threatening of any proceeding for
any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any
order
preventing or suspending the use of any Preliminary Prospectus or other
prospectus or suspending any such qualification, to promptly use its best
efforts to obtain the withdrawal of such order; and in the event of any such
issuance of a notice of objection, promptly to take such steps including,
without limitation, amending the Registration Statement or filing a new
registration statement, at its own expense, as may be necessary to permit offers
and sales of the Shares by the Underwriters (references herein to the
Registration Statement shall include any such amendment or new registration
statement);
(b) If
required by Rule 430B(h) under the Act, to prepare a
form of prospectus in a form approved by you and to file such form of prospectus
pursuant to Rule 424(b) under the Act not later than may be required by Rule
424(b) under the Act; and to make no further amendment or supplement to such
form of prospectus which shall be disapproved by you promptly after reasonable
notice thereof;
(c) Promptly
from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with
such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution
of
the Shares, provided that in connection therewith the Company shall not be
required to (i) qualify as a foreign corporation or to file a general consent
to
service of process in any jurisdiction where it is not now so qualified or
required to file such a consent or (ii) subject itself to taxation in respect
of
doing business in any jurisdiction where it is not currently subject to
taxation;
(d) Prior
to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time to time,
to furnish the Underwriters with written and electronic copies of the Prospectus
in New York City in such quantities as you may reasonably request, and, if
the
delivery of a prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is required at any time prior to the expiration of nine
months after the time of issue of the Prospectus in connection with the offering
or sale of the Shares and if at such time any event shall have occurred as
a
result of which the Prospectus as then amended or supplemented would include
an
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made when such Prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) is delivered, not misleading, or,
if
for any other reason it shall be necessary during such same period to amend
or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Act
or
the Exchange Act, to notify you and upon your request to file such document
and
to prepare and furnish without charge to each Underwriter and to any dealer
in
securities as many written and electronic copies as you may from time to time
reasonably request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such compliance; and
in
case any Underwriter is required to deliver a prospectus (or in lieu thereof,
the notice referred to in Rule 173(a) under the Act) in connection with sales
of
any of the Shares at any time nine months or more after the time of issue of
the
Prospectus, upon your request but at the expense of such Underwriter, to prepare
and deliver to such Underwriter as many written and electronic copies as you
may
request of an amended or supplemented Prospectus complying with Section 10(a)(3)
of the Act;
(e) To
make generally available to its security holders as
soon as practicable, but in any event not later than sixteen months after the
effective date of the Registration Statement (as defined in Rule 158(c) under
the Act), an earnings statement of the Company and its subsidiaries (which
need
not be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company, Rule 158);
(f) During
the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the Prospectus,
not to offer, sell, contract to sell, pledge, grant any option to purchase,
make
any short sale or otherwise dispose, except as provided hereunder, of any
securities of the Company that are substantially similar to the Shares,
including but not limited to any options or warrants to purchase shares of
Stock
or any securities that are convertible into or exchangeable for, or that
represent the right to receive, Stock or any such substantially similar
securities (other than pursuant to stock option and other compensatory plans
or
arrangements existing on, or upon the conversion or exchange of convertible
or
exchangeable securities outstanding as of, the date of this Agreement), without
your prior written consent;
(g) To
pay the required Commission filing fees relating to
the Shares within the time required by Rule 456(b)(1) under the Act in
accordance with Rule 457(r) under the Act;
(h)
Upon
request of any Underwriter, to furnish, or cause to
be furnished, to such Underwriter an electronic version of the Company’s
trademarks, servicemarks and corporate logo for use on the website, if any,
operated by such Underwriter for the purpose of facilitating the on-line
offering of the Shares (the “License”); provided, however, that the License
shall be used solely for the purpose described above, is granted without any
fee
and may not be assigned or transferred;
(i) To
use the net proceeds received by it from the sale of
the Shares in the manner specified in the Pricing Prospectus under the caption
“Use of Proceeds”;
(j) To
use its best efforts to list, subject to notice of
issuance, the Shares on the New York Stock Exchange (the “Exchange”); and
(k) Not
to take, directly or indirectly, any action designed
to cause or result in, or that has constituted or might reasonably be expected
to constitute, the stabilization or manipulation of the price of the
Stock.
6. (a) The
Company represents and
agrees that, without the prior consent of the Representatives, it has not made
and will not make any offer relating to the Shares that would constitute a
“free
writing prospectus” as defined in Rule 405 under the Act; each Underwriter
represents and agrees that, without the prior consent of the Company and the
Representatives, it has not made and will not make any offer relating to the
Shares that would constitute a free writing prospectus; any such free writing
prospectus the use of which has been consented to by the Company and the
Representatives is listed on Schedule II(a) hereto;
(b) The
Company has complied and will comply with the
requirements of Rule 433 under the Act applicable to any Issuer Free Writing
Prospectus, including timely filing with the Commission or retention where
required and legending; and
(c) The
Company agrees that if at any time following issuance
of an Issuer Free Writing Prospectus any event occurred or occurs as a result
of
which such Issuer Free Writing Prospectus would conflict with the information
in
the Registration Statement, the Pricing Prospectus or the Prospectus or would
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances then prevailing, not misleading, the Company will give prompt
notice thereof to the Representatives and, if requested by the Representatives,
will prepare and furnish without charge to each Underwriter an Issuer Free
Writing Prospectus or other document which will correct such conflict, statement
or omission; provided, however, that this representation and warranty shall
not
apply to any statements or omissions in an Issuer Free Writing Prospectus made
in reliance upon and in conformity with information furnished in writing to
the
Company by an Underwriter through one or more of the Representatives expressly
for use therein.
7. The
Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company’s counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing, reproduction and filing
of the Registration Statement, the Basic Prospectus, any Preliminary Prospectus,
any Issuer Free Writing Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, any Blue Sky Memorandum, closing documents
(including any compilations thereof) and any other documents in connection
with
the offering, purchase, sale and delivery of the Shares; (iii) all expenses
in
connection with the qualification of the Shares for offering and sale under
state securities laws as provided in Section 5(c) hereof, including the fees
and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey(s); (iv) any filing
fees incident to, and the fees and disbursements of counsel for the Underwriters
in connection with, any required reviews by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Shares; (v) the cost
of
preparing certificates for the Shares; (vi) the cost and charges of any transfer
agent or registrar or dividend disbursing agent; (vii) all fees and expenses
in
connection with listing the Shares on the Exchange; and (viii) all other costs
and expenses incident to the performance of its obligations hereunder which
are
not otherwise specifically provided for in this Section. It is understood,
however, that, except as provided in this Section, and Sections 9 and 12 hereof,
the Underwriters will pay all of their own costs and expenses, including the
fees of their counsel, transfer taxes on resale of any of the Shares by them,
and any advertising expenses connected with any offers they may make.
8. The
obligations of the Underwriters hereunder, as to the
Shares to be delivered at the Time of Delivery, shall be subject, in their
discretion, to the condition that all representations and warranties and other
statements of the Company herein are, at and as of the Time of Delivery, true
and correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The
Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) under the Act within the applicable time period
prescribed for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; all material required to be filed by the
Company pursuant to Rule 433(d) under the Act shall have been filed with the
Commission within the applicable time period prescribed for such filings by
Rule
433; no stop order suspending the effectiveness of the Registration Statement
or
any part thereof shall have been issued and no proceeding for that purpose
shall
have been initiated or threatened by the Commission and no notice of objection
of the Commission to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been
received; no stop order suspending or preventing the use of the Prospectus
or
any Issuer Free Writing Prospectus shall have been initiated or threatened
by
the Commission; and all requests for additional information on the part of
the
Commission shall have been complied with to your reasonable satisfaction;
(b) ▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters,
shall have furnished to you such written opinion or opinions, dated the Time
of
Delivery, with respect to such matters as the Representatives may reasonably
request, and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters;
(c) (i)
▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel for the Company,
shall have furnished to you their written opinion, dated the Time of Delivery,
in form and substance satisfactory to you, substantially in the form of Annex
I
hereto; and (ii) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Executive Vice President and General
Counsel of the Company, shall have furnished to you his written opinion, dated
the Time of Delivery, in form and substance satisfactory to you, substantially
in the form of Annex II hereto;
(d) On
the date of the Pricing Prospectus at a time prior to
the execution of this Agreement, at 9:30 a.m., New York City time, on the
effective date of any post effective amendment to the Registration Statement
filed subsequent to the date of this Agreement and also at the Time of Delivery,
PricewaterhouseCoopers LLP shall have furnished to you
customary comfort letters addressed to you, dated the Time of Delivery, in
form
and substance satisfactory to you and your counsel with respect to financial
statements and certain financial information contained or incorporated by
reference in the Pricing Prospectus and the Prospectus;
(e) (i)
Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Pricing 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, otherwise than as set forth or
contemplated in the Pricing Prospectus, and (ii) since the respective dates
as
of which information is given in the Pricing Prospectus there shall not have
been any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position, stockholders’
equity or results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Pricing Prospectus, the effect of
which, in any such case described in clause (i) or (ii), is in your judgment
so
material and adverse as to make it impracticable or inadvisable to proceed
with
the public offering or the delivery of the Shares on the terms and in the manner
contemplated in the Prospectus;
(f) On
or after the Applicable Time (i) no downgrading shall
have occurred in the rating accorded the Company’s debt securities or preferred
stock or the rating of any of the Company’s subsidiaries or their securities by
any “nationally recognized statistical rating organization”, as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act, and
(ii)
no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any
of the Company’s debt securities or preferred stock or the rating of any of the
Company’s subsidiaries or their securities;
(g) On
or after the Applicable Time there shall not have
occurred any of the following: (i) a suspension or material limitation in
trading in securities generally on the Exchange; (ii) a
suspension or material limitation in trading in the Company’s securities on the
Exchange; (iii) a general moratorium on commercial banking activities declared
by either Federal or New York or Texas State authorities or a material
disruption in commercial banking or securities settlement or clearance services
in the United States; (iv) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war or (v) the occurrence of any other calamity or crisis or any
change in financial, political or economic conditions in the United States
or
elsewhere; if the effect of any such event specified in clause (iv) or (v)
in
your judgment makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares being delivered at the Time of Delivery
on the terms and in the manner contemplated in the Prospectus;
(h)
The
Shares at the
Time of Delivery shall have been duly listed, subject to notice of issuance,
on
the Exchange;
(i) The
Company shall
have complied with the provisions of Section 5(d) hereof with respect to
the
furnishing of prospectuses on the New York Business Day next succeeding the
date
of this Agreement;
(j) The
Company shall
have furnished or caused to be furnished to you at the Time of Delivery
certificates of the Chief Financial Officer and one additional executive
officer
of the Company who is knowledgeable about the Company’s financial matters as to
the accuracy of the representations and warranties of the Company herein
in all
material respects (except for those representations and warranties as are
qualified by materiality, which are true and correct in all respects), at
and as
of the Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to the Time of Delivery,
as to
the matters set forth in subsections (a) and (e) of this Section, to the
effect
that the contracts filed as exhibits to the documents incorporated by reference
in the Registration Statement, the Pricing Prospectus and the Prospectus
pursuant to Item 601(b)(10) of Regulation S-K promulgated by the Commission
are
the only material agreements or instruments that the Company or any of its
subsidiaries is a party to or bound by or to which any of their properties
or
assets is subject, and as to such other matters as you may reasonably
request;
(k) ▇▇▇▇▇
▇▇▇▇▇
Company, L.P., independent petroleum engineers for the Company, shall have
furnished to you a letter or letters, dated the Time of Delivery, in form
and
substance reasonably satisfactory to you;
(l) The
Company shall
have obtained and delivered to the Underwriters executed copies of an agreement
from each officer and director of the Company, substantially to the effect
set
forth in Section 5(f) hereof (except that, in lieu of the 90-day restriction
period described in Section 5(f) hereof, each such agreement shall provide
for a
60-day restriction period) in form and substance satisfactory to you;
and
(m) The
Company shall
have furnished or caused to be furnished to you at the date hereof a certificate
of the Chief Financial Officer and one additional executive officer of the
Company who is knowledgeable about the Company’s financial matters in form and
substance satisfactory to you, substantially in the form of Annex III
hereto.
9. (a)
The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter 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,
the
Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the
Prospectus, or any amendment or supplement thereto, any Issuer Free Writing
Prospectus or any “issuer information” filed or required to be filed pursuant to
Rule 433(d) under the Act, 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 not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred; 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, the Basic Prospectus, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus, or any amendment or supplement thereto, or any
Issuer Free Writing Prospectus, in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through one or more of
the Representatives expressly for use therein.
(b) Each
Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
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, the Basic Prospectus, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus, 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 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, the Basic Prospectus, any Preliminary Prospectus,
the Pricing Prospectus or the Prospectus, or any amendment or supplement
thereto, or any Issuer Free Writing Prospectus, in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through one or more of the Representatives expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably incurred by
the
Company in connection with investigating or defending any such action or claim
as such expenses are incurred.
(c) Promptly
after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have
to
any indemnified party otherwise than under such subsection. In case any such
action 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 therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
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 under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof
other
than reasonable costs of investigation. No indemnifying party shall, without
the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual
or
potential party to such action or claim) unless such settlement, compromise
or
judgment (i) includes an unconditional release of the indemnified party from
all
liability arising out of such action or claim and (ii) does not include any
statement as to or an admission of fault, culpability or a failure to act,
by or
on behalf of any indemnified party.
(d) If
the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall 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 on the one hand and the Underwriters
on the other from the offering of the Shares. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, 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 of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as
any
other relevant equitable considerations. The relative benefits received by
the
Company on the one hand and the Underwriters on the other 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 or alleged
untrue statement of a material fact or the omission or alleged omission to
state
a material fact relates to information supplied by the Company on the one hand
or the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or
omission. The Company and the Underwriters agree that it would not be just
and
equitable if contribution pursuant to this 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 amount by which the total price at which
the Shares underwritten by it and distributed to the public were offered to
the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 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.
(e) The
obligations of the Company under this Section 9 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act and each broker-dealer affiliate
of any Underwriter; and the obligations of the Underwriters under this Section
9
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and to each person, if any, who controls
the
Company within the meaning of the Act.
10. (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 other parties 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 Time of Delivery 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 or supplements 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 person substituted under this Section 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 by you and
the Company as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased does not exceed one-eleventh of the aggregate
number of all the Shares to be purchased at the Time of Delivery, then the
Company shall have the right to require each non-defaulting Underwriter to
purchase the number of Shares which such Underwriter agreed to purchase
hereunder at the Time of Delivery and, in addition, to require each
non-defaulting 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 by you and
the Company as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased exceeds one-eleventh of the aggregate number
of
all the Shares to be purchased at the Time of Delivery, or if the Company shall
not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Shares of a 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
7 hereof and the indemnity and contribution agreements in Section 9 hereof;
but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
11. The
respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters,
as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless
of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or
the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Shares.
12. If
this Agreement shall be terminated pursuant to Section
10 hereof, the Company shall not then be under any liability to any Underwriter
except as provided in Sections 7 and 9 hereof; but, if for any other
reason, any Shares are not delivered by or on behalf of the Company as provided
herein, the Company will reimburse the Underwriters through you for all
out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Shares not so delivered,
but the Company shall then be under no further liability to any Underwriter
except as provided in Sections 7 and 9 hereof.
13. In
all dealings hereunder, you shall act on behalf of
each of the Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by you as the Representatives.
All
statements, requests, notices and agreements hereunder shall
be in writing, and if to the Underwriters shall be delivered or sent by mail,
telex or facsimile transmission to you as the Representatives in care of Banc
of
America Securities LLC, ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: Syndicate Department; and if to the
Company shall be delivered or sent by mail, telex or facsimile transmission
to
the address of the Company set forth in the Registration Statement, Attention:
Executive Vice President and General Counsel; provided, however, that any notice
to an Underwriter pursuant to Section 9(c) hereof shall be delivered or sent
by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by you upon
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
14. This
Agreement shall be binding upon, and inure solely to
the benefit of, the Underwriters, the Company and, to the extent provided in
Sections 9 and 11 hereof, the officers and directors of the Company and each
person who controls the Company or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser
of
any of the Shares from any Underwriter shall be deemed a successor or assign
by
reason merely of such purchase.
15. Time
shall be of the essence of this Agreement. As used
herein, the term “business day” shall mean any day when the Commission’s office
in Washington, D.C. is open for business.
16. The
Company acknowledges and agrees that (i) the purchase
and sale of the Shares pursuant to this Agreement is an arm's-length commercial
transaction between the Company, on the one hand, and the several Underwriters,
on the other, (ii) in connection therewith and with the process leading to
such
transaction each Underwriter is acting solely as a principal and not the agent
or fiduciary of the Company, (iii) no Underwriter has assumed an advisory or
fiduciary responsibility in favor of the Company with respect to the offering
contemplated hereby or the process leading thereto (irrespective of whether
such
Underwriter has advised or is currently advising the Company on other matters)
or any other obligation to the Company except the obligations expressly set
forth in this Agreement and (iv) the Company has consulted its own legal and
financial advisors to the extent it deemed appropriate. The Company agrees
that
it will not claim that the Underwriters, or any of them, has rendered advisory
services of any nature or respect, or owes a fiduciary or similar duty to the
Company, in connection with such transaction or the process leading
thereto.
17. This
Agreement supersedes all prior agreements and
understandings (whether written or oral) between the Company and the
Underwriters, or any of them, with respect to the subject matter hereof.
18. This
Agreement shall be governed
by and construed in accordance with the laws of the State of New
York.
19.
The Company and each of the Underwriters hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and all right
to
trial by jury in any legal proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
20.
Notwithstanding
anything herein to the contrary, the
Company is authorized to disclose to any persons U.S. federal and state tax
treatment and tax structure of the potential transaction and all materials
of
any kind (including tax opinions and other tax analyses) provided to the Company
relating to that treatment and structure, without the Underwriters imposing
any
limitation of any kind. However, any information relating to the tax treatment
and tax structure shall remain confidential (and the foregoing sentence shall
not apply) to the extent necessary to enable any person to comply with
securities laws. For this purpose, “tax structure” is limited to any facts that
may be relevant to that treatment.
21.
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 respective counterparts shall together constitute
one and the same instrument.
If
the foregoing is in accordance with your understanding, please
sign and return to us six counterparts hereof, and upon the acceptance hereof
by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement between each of the Underwriters
and
the Company. If applicable, it is understood that your acceptance of this letter
on behalf of each of the Underwriters is pursuant to the authority set forth
in
a form of Agreement among Underwriters the form of which shall be submitted
to
the Company for examination upon request, but without warranty on your part
as
to the authority of the signers thereof.
|
Very
truly yours,
|
|
|
El
Paso Corporation
|
|
|
By:
|
/s/
D. ▇▇▇▇ ▇▇▇▇▇▇
|
|
Name: D.
▇▇▇▇ ▇▇▇▇▇▇
|
|
|
Title: Executive
Vice President and Chief Financial
Officer
|
|
|
Accepted
as of the date hereof:
Banc
of America Securities LLC
|
|
|
By:
|
/s/
▇▇▇▇▇▇ ▇. Santamgelo
|
|
Name: ▇▇▇▇▇▇
▇. Santamgelo
|
|
|
Title: Managing
Director
|
|
|
Number
of
Shares
to
be Purchased
|
|
|
Underwriter
|
|
|
Banc
of America Securities LLC
|
35,700,000
|
|
Total
|
35,700,000
|