Exhibit 1.2
PPL CORPORATION
COMMON STOCK, $0.01 PAR VALUE
UNDERWRITING AGREEMENT
__________, ______
___________, ____
[Underwriters]
As Representatives of the several Underwriters
________________________________
________________________________
________________________________
Ladies and Gentlemen:
PPL Corporation, a Pennsylvania corporation (the "COMPANY"),
proposes to issue and sell to the several Underwriters listed in Schedule I
hereto (the "UNDERWRITERS"), for whom you are acting as representatives (the
"REPRESENTATIVES"), subject to the terms and conditions stated herein, an
aggregate of __________ shares of its common stock, par value $0.01 per share
(the "COMMON STOCK") the terms of which are set forth in Schedule II hereto (the
"UNDERWRITTEN SHARES"). Additionally, the Company proposes to issue and sell to
the several Underwriters, for the sole purpose of covering over-allotments in
connection with the sale of the Underwritten Shares, at the option of the
Underwriters, up to an additional ____________ shares (the "OPTION SHARES"). The
Underwritten Shares and any Option Shares are herein referred to as the
"SHARES".
The Company has 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
(the "SECURITIES ACT"), a registration statement on Form S-3 (Registration Nos.
333-_____, 333-_____-01 and 333-_____-02), including a related prospectus,
relating to the registration of certain securities of the Company and of PPL
Capital Funding, Inc., a Delaware corporation, and of PPL Capital Funding Trust
II, a Delaware statutory business trust (the "SHELF SECURITIES"), to be sold
from time to time by the Company. The registration statement as amended at the
date of this Agreement, including information, if any, deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act is hereinafter referred to as the "REGISTRATION STATEMENT",
and the prospectus included therein relating to the Shelf Securities, in the
form first used to confirm sales of the Shares, is hereinafter referred to as
the "BASIC PROSPECTUS". The Basic Prospectus, as supplemented by the prospectus
supplement dated _____, ____ (the "PROSPECTUS SUPPLEMENT"), relating to the
Shares, in the form first used to confirm sales of the Shares is hereinafter
referred to as the "PROSPECTUS". If the Company has filed an abbreviated
registration statement pursuant to Rule 462(b) under the Securities Act (the
"RULE 462 REGISTRATION STATEMENT"), then any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462 Registration
Statement. Any reference to the term Registration Statement, the Basic
Prospectus, any preliminary form of prospectus previously filed with the
Commission pursuant to Rule 424 of the Securities Act or the Prospectus shall
include the documents incorporated therein by reference. The terms "SUPPLEMENT"
and "AMENDMENT" or "AMEND" as used in this Agreement shall include all documents
subsequently filed by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (the "EXCHANGE ACT") that are deemed to be incorporated by
reference in the Prospectus.
1. Representations and Warranties. The Company represents and
warrants to and agrees with each of the Underwriters that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act; the Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose have been instituted or
threatened by the Commission.
(b) Each part of the Registration Statement, when such part became
or becomes effective, and the Prospectus and any amendment or supplement
thereto, on the date of filing thereof with the Commission and at the
Closing Date and the Option Closing Date (each as hereinafter defined), if
any, conformed or will conform in all material respects with the
requirements of the Securities Act; each part of the Registration
Statement, when such part became or becomes effective, did not or 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; and the Prospectus and any amendment or supplement
thereto, on the date of filing thereof with the Commission and on the
Closing Date and the Option Closing Date, if any, did not or will not
include an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except that the
representations and warranties set forth in this paragraph do not apply to
statements in or omissions from any such document in reliance upon, and in
conformity with, written information furnished to the Company by the
Representatives, specifically for use in the Registration Statement, the
Prospectus or any amendment or supplement thereto.
(c) The documents incorporated by reference in the Registration
Statement or the Prospectus, or any amendment or supplement thereto, when
they became effective under the Securities Act or were filed with the
Commission under the Exchange Act, as the case may be, conformed in all
material respects with the requirements of the Securities Act or the
Exchange Act, as applicable, 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 Securities Act or the Exchange Act, as
applicable.
(d) The consolidated financial statements of the Company and its
subsidiaries, together with the related notes and schedules, set forth or
incorporated by reference in the Registration Statement and Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act; such audited
financial statements have been prepared in all material respects in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved, except as disclosed therein; and
no material modifications are required to be made to the unaudited interim
financial statements for them to be in conformity with generally accepted
accounting principles.
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(e) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the Commonwealth of
Pennsylvania with corporate power and authority to enter into and perform
its obligations under this Agreement.
(f) This Agreement has been duly and validly authorized, executed
and delivered by the Company.
(g) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(h) The shares of Common Stock outstanding prior to the issuance of
the Shares have been duly authorized and are validly issued, fully paid and
non-assessable, and are not subject to any preemptive or similar rights.
(i) The Shares have been duly and validly authorized and reserved
for issuance, and, when such Shares are issued and delivered to and paid
for by the Underwriters pursuant to this Agreement, will be validly issued,
fully paid and non-assessable; and the issuance of such Shares will not be
subject to any preemptive or similar rights.
(j) The shares of Common Stock outstanding prior to the issuance of
the Shares are, and upon issuance, the Shares will be, listed on the New
York Stock and Philadelphia Stock Exchanges.
(k) This Agreement has been duly authorized and, at the Closing Date
or, in the case of Option Shares, the Option Closing Date (as defined
herein), will have been duly executed and delivered by the Company; and the
Shares and this Agreement conform in all material respects to the
descriptions thereof contained in the Prospectus.
(l) The Company is not, and after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described
in the Prospectus, will not be, required to register as an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
(m) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein or contemplated thereby, there has been no event or occurrence that
would result in a material adverse change, or any development involving a
material adverse change, in the financial position or results of operations
of the Company and its subsidiaries considered as one enterprise.
(n) The issue and sale of the Shares and the compliance by the
Company with all of the provisions of this Agreement and the consummation
of the transactions contemplated herein will not result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, the Company's articles of incorporation or by-laws, or any material
agreement or instrument to which the Company or any of its subsidiaries is
a party or by which it is bound except for such breaches or defaults that
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would not in the aggregate have a material adverse effect on the Company's
ability to perform its obligations under this Agreement.
2. Agreements to Sell and Purchase. The Company hereby agrees to
sell to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective numbers of Underwritten Shares set forth in Schedule I
hereto opposite its name at $__ per Share (the "PURCHASE PRICE").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Option Shares, and the Underwriters shall have a
one-time right to purchase, severally and not jointly, any or all of the Option
Shares at the Purchase Price. If you, on behalf of the Underwriters, elect to
exercise such option, you shall so notify the Company in writing not later than
30 days after the date of this Agreement, which notice shall specify the number
of Option Shares to be purchased by the Underwriters and the date on which such
Option Shares are to be purchased. Such date may be the same as the Closing Date
(as defined below) but not earlier than the Closing Date nor later than ten
business days after the date of such notice. Option Shares may be purchased as
provided in Section 4 hereof solely for the purpose of covering over-allotments
made in connection with the offering of the Underwritten Shares. If any Option
Shares are to be purchased, each Underwriter agrees, severally and not jointly,
to purchase the number of Option Shares (subject to such adjustments to
eliminate fractional units as you may determine) that bears the same proportion
to the total number of Option Shares to be purchased as the number of
Underwritten Shares set forth in Schedule I hereto opposite the name of such
Underwriter bears to the total number of Underwritten Shares.
The Company hereby agrees that, without the prior written consent of
[________________] on behalf of the Underwriters, it will not, during the period
ending 90 days after the date of the final prospectus supplement included in the
Prospectus, (i) register, offer, pledge, sell, contract to sell, sell any option
or contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase, lend, or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for shares of Common Stock, or (ii) enter
into any swap or other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of the Common Stock, whether
any such transaction described in clause (i) or (ii) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise. The
foregoing sentence shall not apply to (A) the Shares to be issued in the
transactions contemplated hereby or (B) the issuance by the Company of shares of
Common Stock pursuant to, or the grant of options under ,the Company's existing
stock option, employee benefit or dividend reinvestment plans (as described in
the Prospectus).
3. Terms of Public Offering. The Company is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after this Agreement has become effective as in your judgment
is advisable. The Company is further advised by you that the Shares are to be
offered to the public initially at $__ per Share (the "PUBLIC OFFERING PRICE")
and to certain dealers selected by you at the Public Offering Price.
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4. Payment and Delivery. Payment for the Underwritten Shares shall
be made to the Company in Federal or other funds immediately available in New
York City against delivery to the Representatives of the certificates for such
Underwritten Shares for the respective accounts of the several Underwriters, or
delivery to a securities intermediary designated by you of such certificates and
crediting to your securities account at such securities intermediary for the
account of the several Underwriters of security entitlements in respect of the
Underwritten Shares at 10:00 a.m., New York City time, on _______, _____. The
time and date of such payment are hereinafter referred to as the "CLOSING DATE".
Payment for the Option Shares shall be made to the Company in
Federal or other funds immediately available in New York City against delivery
to the Representatives of the certificates for such Option Shares for the
respective accounts of the several Underwriters, or delivery to a securities
intermediary designated by you of such certificates and crediting to your
securities account at such securities intermediary for the accounts of the
several Underwriters of security entitlements in respect of such Option Shares
at 10:00 a.m., New York City time, on the date specified in the notice described
in Section 2 or at such other time on the same or on such other date, in any
event not later than 10 business days after the expiration of the Underwriters'
option to purchase Option Shares as shall be designated in writing by you. The
time and date of such payment are hereinafter referred to as the "OPTION CLOSING
DATE".
The certificates, if any, for the Shares purchased by the
Underwriters shall be registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates,
if any, evidencing the Underwritten Shares or Option Shares shall be delivered
to you on the Closing Date or the Option Closing Date, as the case may be, for
the respective accounts of the several Underwriters, with any transfer taxes
payable in connection with the transfer of the Underwritten Shares or Option
Shares to the Underwriters duly paid, against payment of the Purchase Price with
respect to such Shares.
5. Conditions to the Underwriters' Obligations. The obligations of
the Company to sell the Shares to the Underwriters and the several obligations
of the Underwriters to purchase and pay for the Shares on the Closing Date are
subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been instituted or shall be pending or, to your
knowledge or the Company's knowledge, shall be threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel for the Underwriters.
(b) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) There shall not have occurred any decrease in the ratings of
the Company's securities by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under
the Securities Act) and no such organization shall have publicly
announced that it has under surveillance or review, with possible
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negative implications, its rating of the Company's securities; and
(ii) There shall not have occurred any change or any development
involving a prospective change in or affecting particularly the
business or properties of the Company and its subsidiaries
considered as one enterprise that, in your reasonable judgment, is
material and adverse and that makes it, in your reasonable judgment,
impracticable and inadvisable to market the Shares on the terms and
in the manner contemplated in the Prospectus.
(c) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in Section 5(b)(i) above and to the
effect that the representations and warranties of the Company contained in
this Agreement are true and correct as of the Closing Date and that the
Company has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or before
the Closing Date.
(d) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Company, dated the
Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and
delivered by the Company;
(ii) The Shares have been duly authorized, executed and
delivered by the Company and, when such Shares are issued and
delivered to and paid for by the Underwriters pursuant to this
Agreement, will be validly issued, fully paid and non-assessable,
and the issuance of such Shares will not be subject to any
preemptive or similar rights under Federal or New York law or the
Company's articles of incorporation or by-laws;
(iii) No consent, approval, authorization, order, registration
or qualification of or with any federal or New York governmental
agency or body or, to such counsel's knowledge, any federal or New
York court is required for the issue and sale of the Shares by the
Company and the compliance by the Company with all of the terms of
the Underwriting Agreement and the Shares, except for the
registration under the Securities Act and the Exchange Act of the
Shares, and such consents, approvals, authorizations, orders,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters;
(iv) The Registration Statement has become effective under the
Securities Act and the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) under the Securities Act
specified in such opinion on the date specified therein, and, to the
best of the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any part thereof has
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been issued and no proceedings for that purpose have been instituted
or are pending or contemplated under the Securities Act, and the
Registration Statement, as of its effective date, and any amendment
or supplement thereto, as of its date, and the Prospectus, as of the
date of this Agreement, complied as to form in all material respects
with the requirements of the Securities Act, and nothing has come to
the attention of such counsel that would lead such counsel to
believe either that the Registration Statement or any such amendment
or supplement, as of such dates, contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectus, as of the date of this Agreement
and as of the Closing Date, contained or contains any untrue
statement of a material fact or omitted or omits to state any
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; it
being understood that such counsel need express no opinion as to the
financial statements and other financial data contained or
incorporated by reference in the Registration Statement or the
Prospectus;
(v) The statements (A) in the Prospectus Supplement under the
captions, "Description of the Common Stock" and (B) in the Basic
Prospectus, as supplemented by the Prospectus Supplement, under the
captions "PPL Corporation" and "Description of PPL Corporation's
Capital Stock", in each case insofar as such statements constitute
summaries of documents or legal matters, constitute accurate
summaries of the terms thereof in all material respects;
(vi) The Company is not, and after giving effect to the offering
and sale of the Shares and the application of the proceeds thereof
as described in the Prospectus, the Company will not be, required to
register as an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended; and
(vii) Subject to the qualifications and limitations stated
therein, the statements set forth in the Prospectus under the
caption "United States Federal Income Tax Consequences" insofar as
they purport to constitute summaries of matters of United States
federal tax laws and regulations or legal conclusions with respect
thereto, constitute accurate summaries of the matters described
therein in all material respects.
In rendering such opinion, Xxxxxxx Xxxxxxx & Xxxxxxxx may rely as to
matters governed by Pennsylvania law upon the opinion of Xxxxxxx X. XxXxxxx,
Esq. or such other counsel referred to in paragraph (e) below. The opinion of
Xxxxxxx Xxxxxxx & Xxxxxxxx shall be rendered to the Underwriters at the request
of the Company and shall so state therein.
(e) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxxx X. XxXxxxx, or other counsel to the Company, dated the
Closing Date, to the effect that:
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(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
Commonwealth of Pennsylvania, with power and authority (corporate
and other) to own its properties and conduct its business as
described in the Prospectus;
(ii) The descriptions in the Registration Statement and the
Prospectus of statutes, legal and governmental proceedings and
contracts and other documents are accurate and fairly present the
information required to be shown; and such counsel does not know of
any legal or governmental proceedings required to be described in
the Registration Statement or Prospectus which are not described, or
of any contracts or documents of a character required to be
described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement which are not
described and filed as required; it being understood that such
counsel need express no opinion as to the financial statements and
other financial data contained or incorporated by reference in the
Registration Statement or the Prospectus;
(iii) This Agreement has been duly authorized, executed and
delivered by the Company;
(iv) All legally required proceedings in connection with the
authorization and issue of the Shares and the sale of the Shares by
the Company in the manner set forth herein, have been had and remain
in effect, and all requisite action of public boards or bodies
(other than in connection or in compliance with the provisions of
the securities or blue sky laws of any jurisdiction) as may be
legally required with respect to all or any of such matters or
related thereto has been taken and remains in effect, and the
Company is exempt from the provisions of the Public Utility Holding
Company Act of 1935 applicable to it as a holding company and with
respect to such authorization, issue and sale;
(v) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the
Prospectus;
(vi) The shares of Common Stock outstanding prior to the
issuance of the Shares have been duly authorized and are validly
issued, fully paid and non-assessable and are not subject to any
preemptive or similar rights; and
(vii) The Shares have been duly authorized and conform to the
description thereof contained in the Prospectus, and, when issued
and delivered in accordance with the terms of this Agreement, will
be validly issued, fully paid and non-assessable, and the issuance
of such Shares will not be subject to any preemptive or similar
rights.
(f) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxxxx & Xxxxxxxx, counsel for the Underwriters, dated the
Closing Date in form and substance satisfactory to the Underwriters.
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(g) On the date hereof and on the Closing Date, the Underwriters
shall have received a letter from PricewaterhouseCoopers LLP, independent
public accountants for the Company, or other independent accountants
satisfactory to the Representatives, in form and substance satisfactory to
the Underwriters, to the effect that:
(i) They are independent accountants with respect to the Company
and its subsidiaries within the meaning of the Securities Act;
(ii) In their opinion, the consolidated financial statements of
the Company and its subsidiaries audited by them and incorporated by
reference in the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of the
Securities Act and the Exchange Act with respect to registration
statements on Form S-3;
(iii) On the basis of procedures (but not an audit in accordance
with generally accepted auditing standards) consisting of:
(A) Reading the minutes of meetings of the shareowners and
the Board of Directors of the Company and its Executive,
Compensation and Corporate Governance, Finance and Audit and
Corporate Responsibility Committees since the day after the end
of the last audited period as set forth in the minute books
through a specified date not more than five business days prior
to the date of delivery of such letter;
(B) With respect to the unaudited consolidated balance
sheet as of the most recent quarter ended and the unaudited
consolidated statements of income and of cash flows included in
the Company's Quarterly Report on Form 10-Q for the most recent
quarter ended ("Form 10-Q") incorporated by reference in the
Registration Statement,
(i) Performing the procedures specified by the American
Institute of Certified Public Accountants for a review of
interim financial information as described in SAS No. 71,
Interim Financial Information, on the unaudited consolidated
balance sheet and the unaudited consolidated statements of
income and of cash flows for the most recent quarter ended
and year to date, and prior year periods, included in the
Company's Form 10-Q incorporated by reference in the
Registration Statement;
(ii) Making inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters as to whether the unaudited consolidated financial
statements referred to in (B)(i) comply as to form in all
material respects with the applicable accounting
requirements of the Exchange Act, as it applies to Form 10-Q
and the related published rules and regulations thereunder;
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(C) Reading the unaudited interim financial data for the
period from the date of the latest balance sheet included or
incorporated in the Registration Statement to the date of the
latest available interim financial data; and
(D) Making inquiries of certain officials of the Company
who have responsibility for financial and accounting matters
regarding the specific items for which representations are
requested below; nothing has come to their attention as a result
of the foregoing procedures that caused them to believe that (i)
the unaudited consolidated financial statements described in
(B)(i), included in the Form 10-Q and incorporated by reference
in the Registration Statement, do not comply as to form in all
material respects with the applicable accounting requirements of
the Securities Act and the Exchange Act, as it applies to Form
10-Q; or (ii) any material modifications should be made to the
unaudited consolidated financial statements described in (B)(i),
included in the Form 10-Q and incorporated by reference in the
Registration Statement, for them to be in conformity with
generally accepted accounting principles; or (iii) at the date
of the latest available interim financial data and at the date
of the latest available month end, there was any change in the
common equity; (iv) at the date of the latest available interim
financial data and at a specified date not more than five
business days prior to the date of delivery of such letter,
there was any change in the common stock or preferred stock
(with or without sinking fund requirements) (except for changes
in shares of certain series of preferred stock of a subsidiary
of the Company redeemed for, purchased or otherwise retired in
anticipation of, sinking fund requirements for such series or as
a result of the surrender by the Company of any preferred stock
of PPL Electric Utilities theretofore purchased by the Company)
or increase in long-term debt of the Company and subsidiaries
consolidated as compared with amounts shown in the latest
balance sheet incorporated by reference in the Registration
Statement; or (v) for the period from the closing date of the
latest consolidated income statement incorporated by reference
in the Registration Statement to the date of the latest
available interim financial data there were any decreases, as
compared with the corresponding period in the preceding year, in
net income, except in all instances for changes, increases or
decreases which the Registration Statement, including the
documents incorporated therein by reference, discloses have
occurred or may occur, or they shall state any specific changes
or decreases.
(iv) The letter shall also state that certain designated
information has been obtained from the Company's financial
statements or accounting records which are subject to the internal
controls of the Company's accounting system or which has been
derived directly from such accounting records by analysis or
computation, is in agreement with such financial statements, records
or computations made therefrom, except as otherwise specified in
such letter.
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(h) The "lock-up" agreements, each substantially in the form of
Exhibit A hereto, between you and each of the directors and executive
officers of the Company relating to sales and certain other dispositions of
shares of Common Stock or certain other securities, delivered to you on or
before the date hereof, shall be in full force and effect on the Closing
Date.
(i) The Shares shall have been approved for listing, subject only to
official notice of issuance, on the New York Stock Exchange and the
Philadelphia Stock Exchange.
The several obligations of the Underwriters to purchase Option
Shares hereunder are subject to the delivery to you on the Option Closing Date
of such documents as you may reasonably request, including those set forth
above, with respect to the good standing of the Company, the due authorization
and issuance of the Option Shares and other matters related to the issuance of
the Option Shares.
6. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with
each Underwriter as follows:
(a) To furnish to you, without charge, a conformed copy of the
Registration Statement (including exhibits and documents incorporated by
reference thereto) and for delivery to each other Underwriter a conformed
copy of the Registration Statement (without exhibits thereto) and to
furnish to you in New York City, without charge, prior to 11:00 a.m. New
York City time on the business day next succeeding the date of this
Agreement and, during the period mentioned in Section 6(d) below, as many
copies of the Prospectus, any documents incorporated by reference therein
and any supplements and amendments thereto or to the Registration Statement
as you may reasonably request.
(b) During the period after the first date of the public offering of
the Shares, if the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, before amending or
supplementing the Registration Statement or the Prospectus (including by
filing any document that would as a result thereof be incorporated by
reference in the Prospectus), to furnish to you a copy of each such
proposed amendment, supplement or other document and not to file any such
proposed amendment, supplement or other document to which you reasonably
object, and to file with the Commission within the applicable period
specified in Rule 424(b) under the Securities Act any prospectus required
to be filed pursuant to such Rule.
(c) During the period after the first date of the public offering of
the Shares, if the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, to file all documents
required to be filed with the Commission pursuant to Section 13, 14 or
15(d) of the Exchange Act within the time periods prescribed by the
Exchange Act.
(d) If, during such period after the first date of the public
offering of the Shares, the Prospectus is required by law to be delivered
in connection with sales by an Underwriter or dealer, any event shall occur
or condition exist as a result of which it is necessary to amend or
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supplement the Prospectus in order to make the statements therein, in the
light of the circumstances existing when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the Commission
and furnish, at its own expense, to the Underwriters and to the dealers
(whose names and addresses you will furnish to the Company) to which Shares
may have been sold by you on behalf of the Underwriters and to any other
dealers upon request, either amendments or supplements to the Prospectus,
so that the statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus, as so amended or
supplemented, will comply with law; provided, however, that the cost of any
amendment or supplement which relates solely to the activities of any
Underwriter shall be borne by the Underwriter or Underwriters requiring the
same.
(e) To endeavor, in cooperation with the Underwriters, to qualify
the Shares for offer and sale under the securities or blue sky laws of such
states and the other jurisdictions of the United States as the Underwriters
may from time to time designate, to continue such qualifications in effect
so long as required for the distribution of the Shares and to reimburse the
Underwriters for any expenses (including filing fees and reasonable fees
and disbursements of counsel) paid by the Underwriters or on their behalf
to qualify the Shares for offer and sale, to continue such qualification,
to determine the eligibility of the Shares for investment and to print the
memoranda relating thereto; provided that the Company shall not be required
to qualify as a foreign corporation in any jurisdiction in which it is not
so qualified, to consent to service of process in any jurisdiction other
than with respect to claims arising out of the offering or sale of the
Shares, or to meet any other requirement in connection with this paragraph
(e) deemed by it to be unduly burdensome.
(f) As soon as practicable, the Company will make generally
available to its security holders an earnings statement covering a period
of at least twelve months beginning after the "effective date of the
registration statement" within the meaning of Rule 158 under the Securities
Act which will satisfy the provisions of Section 11(a) of the Securities
Act.
(g) To use its best efforts to effect the listing of the Shares on
The New York Stock Exchange and the Philadelphia Stock Exchange.
(h) To pay or bear (i) all expenses in connection with the matters
herein required to be performed by the Company, including all expenses
(except as provided in Section 6(d) above) in connection with the
preparation and filing of the Registration Statement and the Prospectus,
and any amendment or supplement thereto, and the furnishing of copies
thereof to the Underwriters, and all audits, statements or reports in
connection therewith, and all expenses in connection with the issue and
delivery of the Shares to the Underwriters in the place designated in
Section 4 hereof, any fees and expenses relating to the eligibility and
issuance of Shares in book-entry form and the cost of obtaining CUSIP or
other identification numbers for the Shares, all Federal and State taxes
(if any) payable (not including any transfer taxes) upon the issue of the
12
Shares, the fees and expenses incurred in connection with any listing of
the Shares on a securities exchange, the Company's costs and expenses
relating to investor presentations on any "road show" undertaken in
connection with the marketing of the offering of the Shares, including,
without limitation, expenses associated with the production of road show
slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior approval of the
Company, travel and lodging expenses of the representatives and officers of
the Company and any such consultants, and the Company's portion of the cost
of any aircraft chartered in connection with the road show, and the fee of
the National Association of Securities Dealers, Inc., if any, and (ii) all
expenses in connection with the printing, reproduction and delivery of this
Agreement and the printing, reproduction and delivery of such other
documents or certificates as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Shares, including any
preliminary prospectus and each Prospectus, and any amendment or supplement
thereto, to the Underwriters.
7. Indemnity and Contribution.
(a) The Company agrees that it will indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act, against any and all loss, expense, claim, damage or liability
to which, jointly or severally, such Underwriter or such controlling person
may become subject, under the Securities Act or otherwise, insofar as such
loss, expense, claim, damage or liability (or actions in respect thereof)
arises out of or is based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus, any related preliminary prospectus, or any amendment or
supplement to any thereof, or arises out of or is based upon the omission
or alleged omission to state therein any material fact required to be
stated therein or necessary to make the statements therein not misleading;
and, except as hereinafter in this Section provided, the Company agrees to
reimburse each Underwriter and each person who controls any Underwriter as
aforesaid for any reasonable legal or other expenses as incurred by such
Underwriter or such controlling person in connection with investigating or
defending any such loss, expense, claim, damage or liability; provided,
however, that the Company shall not be liable in any such case to the
extent that any such loss, expense, claim, damage or liability arises out
of or is based on an untrue statement or alleged untrue statement or
omission or alleged omission made in any such document in reliance upon,
and in conformity with, written information furnished to the Company by the
Representatives expressly for use in any such document or arises out of, or
is based on, statements in or omissions from that part of the Registration
Statement which shall constitute the T-1; provided, further, however, that
the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, expenses, claims, damages or liabilities
purchased Shares, or any person controlling such Underwriter, if a copy of
the Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Underwriter to such person, if required by law so to
have been delivered, at or prior to the written confirmation of the sale of
the Shares to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses,
13
claims, damages or liabilities, unless such failure is the result of
noncompliance by the Company with Section 7(a) hereof.
(b) Each Underwriter severally agrees that it will indemnify and
hold harmless the Company, its officers, trustees and directors, and each
of them, and each person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act, against any loss, expense, claim, damage or liability to which it or
they may become subject, under the Securities Act or otherwise, insofar as
such loss, expense, claim, damage or liability (or actions in respect
thereof) arises out of or is based on any untrue statement or alleged
untrue statement of any material fact contained in the Registration
Statement, the Prospectus, any related preliminary prospectus, or any
amendment or supplement to any thereof, or arises out of or is based upon
the omission or alleged omission to state therein any material fact
required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, and only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any such documents in reliance upon, and in conformity
with, written information furnished to the Company by the Representatives,
expressly for use in any such document and, except as hereinafter in this
Section provided, each Underwriter agrees to reimburse the Company, its
officers, trustees and directors, and each of them, and each person, if
any, who controls the Company within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act, for any reasonable legal
or other expenses incurred by it or them in connection with investigating
or defending any such loss, expense, claim, damage or liability.
(c) Upon receipt of notice of the commencement of any action against
an indemnified party, the indemnified party shall, with reasonable
promptness, if a claim in respect thereof is to be made against an
indemnifying party under its agreement contained in this Section 7, notify
such indemnifying party in writing of the commencement thereof; but the
omission so to notify an indemnifying party shall not relieve it from any
liability which it may have to the indemnified party otherwise than under
its agreement contained in this Section 7. In the case of any such notice
to an indemnifying party, it shall be entitled to participate at its own
expense in the defense, or if it so elects, to assume the defense, of any
such action, but, if it elects to assume the defense, such defense shall be
conducted by counsel chosen by it and satisfactory to the indemnified party
and to any other indemnifying party, defendant in the suit, and the
indemnifying party shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless
(i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the indemnified party has
reasonably concluded (based on advice of counsel) that there may be legal
defenses available to it or other indemnified parties that are different
from or in addition to those available to the indemnifying party. It is
understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel)
for all such indemnified parties and that all such fees and expenses shall
14
be reimbursed as they are incurred. Such firm shall be designated in
writing by [_______________________________], in the case of parties
indemnified pursuant to Section 7(a), and by the Company, in the case of
parties indemnified pursuant to Section 7(b). No indemnifying party shall
be liable in the event of any settlement of any such action effected
without its consent except as provided in Section 7(e) hereof. Each
indemnified party agrees promptly to notify each indemnifying party of the
commencement of any litigation or proceedings against it in connection with
the issue and sale of the Shares.
(d) If any Underwriter or person entitled to indemnification by the
terms of subsection (a) of this Section 7 shall have given notice to the
Company of a claim in respect thereof pursuant to Section 7(c) hereunder,
and if such claim for indemnification is thereafter held by a court to be
unavailable for any reason other than by reason of the terms of this
Section 7 or if such claim is unavailable under controlling precedent, such
Underwriter or person shall be entitled to contribution from the Company to
liabilities and expenses, except to the extent that contribution is not
permitted under Section 11(f) of the Securities Act. In determining the
amount of contribution to which such Underwriter or person is entitled,
there shall be considered the relative benefits received by such
Underwriter or person and the Company from the offering of the Shares that
were the subject of the claim for indemnification (taking into account the
portion of the proceeds of the offering realized by each), such
Underwriter's or person's and the Company's knowledge and access to
information concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any statement or omission,
and any other equitable considerations appropriate under the circumstances.
The Company and the Underwriters agree that it would not be equitable if
the amount of such contribution were determined by pro rata or per capita
allocation (even if the Underwriters were treated as one entity for such
purpose).
(e) No indemnifying party shall, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry of
any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution
could be sought under this Section 7 (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each
indemnified party and all liability arising out of such litigation,
investigation, proceeding or claim, and (ii) does not include a statement
as to or an admission of fault, culpability or the failure to act by or on
behalf of any indemnified party.
(f) The indemnity and contribution provided for in this Section 7
and the representations and warranties of the Company and the several
Underwriters set forth in this Agreement shall remain operative and in full
force and effect regardless of (i) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter, the Company,
its directors, trustees or officers or any person controlling any of them,
(ii) acceptance of any Shares and payment therefor under this Agreement,
and (iii) any termination of this Agreement.
15
8. Termination. This Agreement shall be subject to termination by
notice given by you to the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange, the Philadelphia Stock Exchange or the National Association
of Securities Dealers, Inc.; (ii) there has been any suspension or limitation of
trading of any securities of the Company on any exchange or in the
over-the-counter market; (iii) a general banking moratorium has been declared by
Federal or New York authorities or there shall have occurred a material
disruption in commercial banking or securities settlement or clearance services
in the United States; or (iv) there shall have occurred any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration by the United States of any national emergency or war or any other
substantial national or international calamity or emergency if, in your
reasonable judgment the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical and inadvisable to proceed with
completion of the sale of and payment for the Shares.
9. Effectiveness; Defaulting Underwriters. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase Shares
that it has or they have agreed to purchase hereunder on such date, and the
aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of the Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Underwritten Shares set forth opposite their respective names in Schedule I
bears to the aggregate number of Underwritten Shares set forth opposite the
names of all such non-defaulting Underwriters, or in such other proportions as
you may specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Shares that any Underwriter has agreed to
purchase pursuant to this Agreement be increased pursuant to this Section 9 by
an amount in excess of one-ninth of such number of Shares without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Underwritten Shares and the
aggregate number of Underwritten Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Underwritten Shares to
be purchased, and arrangements satisfactory to you and the Company for the
purchase of such Underwritten Shares are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. If, on the Option Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Option Shares and the aggregate
number of Option Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Option Shares to be purchased, the
non-defaulting Underwriters shall have the option to (i) terminate their
obligation hereunder to purchase Option Shares or (ii) purchase not less than
the number of Option Shares that such non-defaulting Underwriters would have
been obligated to purchase in the absence of such default. Any action taken
16
under this paragraph shall not relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company shall reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
10. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
11. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
12. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be given to the Representatives, c/o[
_______________________________] (telefax: [__________]); Attention:
[__________________]. Notices to the Company shall be given to it at Xxx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000-0000; Attention: Vice
President-Finance and Treasurer.
17
13. 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 respective counterparts shall together
constitute one and the same instrument.
Very truly yours,
PPL CORPORATION
By: _______________________________
Name:
Title:
Accepted as of the date hereof
[Underwriters]
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto.
By: [______________]
By:__________________________
Name:
Title:
18
<
SCHEDULE I
NUMBER OF
UNDERWRITTEN SHARES
UNDERWRITER TO BE PURCHASED
[Underwriters]
------------------
Total........................................ ==================
SCHEDULE II
Registration Statement: Registration Statement Nos. 333-____,
333-_____-01 and 333-_____-02
Number of Underwritten Shares:
Number of Option Shares:
Price to Public: $___ per Share
Purchase Price by Underwriters: $___ per Share
Specified funds for payment of Federal (same day) funds
purchase price:
Stock Exchange Listing: New York Stock Exchange and
Philadelphia Stock Exchange
Closing Date:
Closing Location: Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Names and addresses of Representatives:
EXHIBIT A
[FORM OF LOCK-UP LETTER]
_________, ______
[Underwriters]
c/o [Representative]
Dear Sirs and Mesdames:
The undersigned understands that [Representative] proposes to enter
into an Underwriting Agreement (the "UNDERWRITING AGREEMENT") with PPL
Corporation, a Pennsylvania corporation (the "COMPANY"), providing for the
public offering (the "PUBLIC OFFERING") by the several Underwriters, including
[Representative] (the "UNDERWRITERS"), of shares of the Common Stock, par value
$.01 per share of the Company (the "COMMON STOCK").
To induce the Underwriters that may participate in the Public
Offering to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of
[Representative] on behalf of the Underwriters, it will not, during the period
commencing on the date hereof and ending 90 days after the date of the final
prospectus relating to the Public Offering (the "PROSPECTUS"), (1) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or (2) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of the Common Stock, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. The foregoing sentence shall not apply
to (a) the sale of any shares of Common Stock to the Underwriters pursuant to
the Underwriting Agreement or (b) transactions relating to shares of Common
Stock or other securities acquired in open market transactions after the
completion of the Public Offering. In addition, the undersigned agrees that,
without the prior written consent of [Representative] on behalf of the
Underwriters, it will not, during the period commencing on the date hereof and
ending 90 days after the date of the Prospectus, make any demand for or exercise
any right with respect to, the registration of any shares of Common Stock or any
security convertible into or exercisable or exchangeable for Common Stock.
Whether or not the Public Offering actually occurs depends on a
number of factors, including market conditions. Any Public Offering will only be
made pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
______________________________
(Name)
______________________________
(Address)