Exhibit 1
EQUITABLE RESOURCES CAPITAL TRUST I
$125,000,000
___% Capital Securities
(Liquidation Amount $25 per Capital Security)
UNDERWRITING AGREEMENT
________ __, 1998
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Equitable Resources Capital Trust I (the "Trust"), a statutory business
trust organized under the Business Trust Act (the "Delaware Act") of the State
of Delaware (Chapter 38, Title 12, of the Delaware Business Code, 12 Del. C.
Section 3801 et seq.), and Equitable Resources, Inc., a Pennsylvania corporation
(the "Company" and, together with the Trust, the "Offerors"), as depositor of
the Trust and as guarantor, propose, upon the terms and conditions set forth
herein to issue and sell ___% Capital Securities with an aggregate liquidation
amount equal to $125,000,000 (the "Capital Securities") to Xxxxxx Xxxxxxx & Co.
Incorporated, ________________________ and ___________________ (collectively,
the "Underwriters"), for whom you (the "Representative") are acting as
representative.
The Capital Securities and Common Securities (as defined herein) are to be
issued pursuant to the terms of an Amended and Restated Trust Agreement dated as
of ________, 1998 (the "Trust Agreement"), among Equitable Resources, Inc., as
depositor, and Bankers Trust Company ("Trust Company"), a New York banking
corporation, as property trustee ("Property Trustee"), and Bankers Trust
(Delaware) ("Trust Delaware"), a Delaware banking corporation, as Delaware
trustee ("Delaware Trustee"), and the holders from time to time of undivided
interests in the assets of the Trust. The Capital Securities will be guaranteed
by the Company on a subordinated basis and subject to certain limitations with
respect to distributions and payments upon liquidation, redemption or otherwise
(the "Capital Securities Guarantee") pursuant to a Guarantee Agreement dated as
of ________, 1998 (the "Capital Securities Guarantee Agreement"), between the
Company and
the Trust Company, as Trustee (the "Guarantee Trustee"). The Capital Securities
issued in book-entry form will be issued to Cede & Co. as nominee of The
Depository Trust Company ("DTC") pursuant to a letter agreement, to be dated as
of the Closing Date (as defined herein) (the "DTC Agreement"), among the Trust,
the Guarantee Trustee and DTC.
The entire proceeds from the sale of the Capital Securities will be
combined with the entire proceeds from the sale by the Trust to the Company of
its common securities (the "Common Securities"), as guaranteed by the Company,
to the extent set forth in the Prospectus (as defined herein), with respect to
distributions and payments upon liquidation, redemption and otherwise (the
"Common Securities Guarantee" and, together with the Capital Securities
Guarantee, the "Guarantees") pursuant to the Common Securities Guarantee
Agreement, to be dated as of __________, 1998 (the "Common Securities Guarantee
Agreement" and, together with the Capital Securities Guarantee Agreement, the
"Guarantee Agreements"), made by the Company, and will be used by the Trust to
purchase $________ aggregate principal amount of ___% Junior Subordinated
Deferrable Interest Debentures due __________, 2028 (the "Subordinated
Debentures") to be issued by the Company. The Subordinated Debentures will be
issued pursuant to an indenture, to be dated as of __________, 1998 (the
"Indenture"), between the Company and The Bank of New York, as trustee (the
"Indenture Trustee").
The Capital Securities, the Capital Securities Guarantee and the
Subordinated Debentures are hereinafter collectively referred to as the
"Securities." The Indenture, the Declaration, the DTC Agreement and this
Agreement are hereinafter collectively referred to as the "Operative Documents."
The Company and the Trust have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No. 333-
_______) and a related preliminary prospectus for the registration of the
Capital Securities under the Securities Act of 1933, as amended (the "Securities
Act"), and the rules and regulations thereunder (the "Securities Act
Regulations"). The Company and the Trust have prepared and filed such
amendments thereto, if any, and such amended preliminary prospectuses, if any,
as may have been required to the date hereof, and will file such additional
amendments thereto and such amended prospectuses as may hereafter be required.
The registration statement has been declared effective under the Securities Act
by the Commission. The registration statement as amended at the time it became
effective (including the Prospectus and the documents incorporated by reference
therein pursuant to the section therein entitled "Incorporation of Certain
Documents by Reference" and all information deemed to be a part of the
registration statement at the time it became effective pursuant to Rule 430A of
the Securities Act Regulations) is hereinafter called the "Registration
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Statement," except that, if the Company files a post-effective amendment to such
registration statement which becomes effective prior to the Closing Date (as
defined below), "Registration Statement" shall refer to such registration
statement as so amended. Each prospectus included in the Registration
Statement, or amendments thereof, before it became effective under the
Securities Act and any prospectus filed with the Commission by the Company with
the consent of the Underwriters pursuant to Rule 424(a) of the Securities Act
Regulations (including the documents incorporated by reference therein) is
hereinafter called the "Preliminary Prospectus." The term "Prospectus" means the
final prospectus (including the documents incorporated by reference therein), as
first filed with the Commission pursuant to paragraph (1) or (4) of Rule 424(b)
of the Securities Act Regulations. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus. For purposes of
this Agreement, all references to the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("XXXXX").
1. REPRESENTATIONS AND WARRANTIES. The Offerors jointly and severally
represent and warrant to each of the Underwriters that as of the date hereof and
on the Closing Date (as hereinafter defined):
(a) the Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceeding for that purpose
has been instituted or threatened by the Commission; and the Registration
Statement and Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) comply, or will comply, as the
case may be, in all material respects with the Securities Act and the Trust
Indenture Act of 1939, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Trust Indenture Act"), and do not and
will not, as of the applicable effective date as to the Registration Statement
and any amendment thereto and as of the date of the Prospectus and any amendment
or supplement thereto, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, and the Prospectus, as amended or supplemented at the
Closing Date, if applicable, will not contain any 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 foregoing representations and warranties shall not apply to (i)
that part of the Registration Statement which constitutes the Statements of
Eligibility and Qualification (Form T-1) under
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the Trust Indenture Act, and (ii) statements or omissions in the Registration
Statement or the Prospectus made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use therein;
(b) the documents incorporated or deemed to be incorporated by
reference in the Registration Statement 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 Securities Act or the Exchange
Act of 1934, as amended (the "Exchange Act"), as applicable, 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, in the light of the circumstances under which they were made, 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 Securities Act
or the Exchange Act, as applicable, 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, in the light of the circumstances
under which they were made, not misleading;
(c) the accountants who certified the financial statements and
supporting schedules included in the Registration Statement are independent
public accountants as required by the Securities Act and Securities Act
Regulations;
(d) the financial statements, together with the related schedules and
notes thereto, included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the consolidated financial position
of the Company and its consolidated subsidiaries as of the dates indicated and
the results of their operations and the changes in their consolidated cash flows
for the periods specified; said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a consistent
basis, and the supporting schedules included or incorporated by reference in the
Registration Statement present fairly the information required to be stated
therein; and the pro forma financial information, and the related notes thereto,
included or incorporated by reference in the Registration Statement and the
Prospectus has been prepared in accordance with the applicable requirements of
the Securities Act and the Exchange Act, as applicable; and is based upon good
faith estimates and assumptions believed by the Company to be reasonable;
(e) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any change in the
capital stock or long-term debt of
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the Company or any of its subsidiaries other than pursuant to the conversion of
convertible securities or the exercise of stock options, in either case, set
forth in the most recent financial statements of the Company included or
incorporated in the Prospectus, or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated in
the Prospectus; and except as set forth or contemplated in the Prospectus
neither the Trust, the Company or any of its subsidiaries has entered into any
transaction or agreement (whether or not in the ordinary course of business)
material to the Trust, the Company and its subsidiaries taken as a whole;
(f) 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 or other) to own its
properties and conduct its business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the Company and its
subsidiaries taken as a whole;
(g) each of the Company's subsidiaries has been duly incorporated and
is validly existing as a corporation under the laws of its jurisdiction of
incorporation, with power and authority (corporate or other) to own, lease and
operate its properties and conduct its business as described in the Prospectus,
and has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each jurisdiction in which it
owns or leases properties or conducts any business so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the Company and its
subsidiaries taken as a whole; and all the outstanding shares of capital stock
of each subsidiary of the Company have been duly authorized and validly issued,
are fully-paid and non-assessable, and (except in the case of foreign
subsidiaries, for directors' qualifying shares) are owned by the Company,
directly or indirectly, free and clear of all liens, encumbrances, security
interests and claims;
(h) (i) the Company had at the date indicated a duly authorized and
outstanding capitalization as set forth in the Prospectus, (ii) all of the
outstanding shares of capital stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable, and (iii) none of the
outstanding
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shares of capital stock of the Company was issued in violation of the preemptive
rights of any stockholder of the Company;
(i) the Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act with the power and authority
to own property and to conduct its business as described in the Prospectus and
to enter into and perform its obligations under the Operative Documents, as
applicable, and the Capital Securities; the Trust is not a party to or otherwise
bound by any material agreement other than those described in the Prospectus;
and the Trust is and will, under current law, be classified for United States
federal income tax purposes as a grantor trust and not as an association taxable
as a corporation;
(j) the Common Securities have been duly authorized by the Declaration
and, when issued and delivered by the Trust to the Company against payment
therefor as described in the Prospectus, will be validly issued and will
represent undivided beneficial interests in the assets of the Trust; the
issuance of the Common Securities is not subject to preemptive or other similar
rights; and on the Closing Date all of the issued and outstanding Common
Securities of the Trust will be directly owned by the Company free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or equitable
right;
(k) as of the Closing Date, the Capital Securities will have been duly
authorized by the Trust and, when issued and delivered against payment therefor
as provided herein, will be validly issued and fully paid and non-assessable
undivided beneficial interests in the assets of the Trust and will conform in
all material respects to the description thereof contained in the Prospectus and
the issuance of the Capital Securities will not be subject to preemptive or
other similar rights;
(l) this Agreement has been duly authorized, executed and delivered by
the Offerors;
(m) the Trust Agreement has been qualified under the Trust Indenture
Act and has been duly authorized by the Company and, on the Closing Date, will
have been duly executed and delivered by the Company and the Trustees, and
assuming due authorization, execution and delivery of the Trust Agreement by the
Trustees, the Trust Agreement will, on the Closing Date, be a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except to the extent that enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally or by general principles of equity
(regardless of whether enforcement is considered in a proceeding at law or in
equity) and the availability of equitable remedies (collectively, the
"Enforceability Exceptions");
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(n) the Capital Securities Guarantee Agreement has been qualified
under the Trust Indenture Act; each of the Guarantee Agreements has been duly
authorized by the Company and, on the Closing Date, will have been duly executed
and delivered by the Company and will constitute a valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms,
except to the extent that enforcement thereof may be limited by the
Enforceability Exceptions;
(o) the Indenture has been duly qualified under the Trust Indenture
Act and, on the Closing Date, will have been duly authorized, executed and
delivered by the Company and will constitute a valid and binding agreement of
the Company, enforceable in accordance with its terms except to the extent that
enforcement thereof may be limited by the Enforceability Exceptions; and the
Indenture (including any amendments and supplements thereto) conforms with all
requirements of the Trust Indenture Act and the applicable rules and regulations
promulgated thereunder by the Commission;
(p) the Subordinated Debentures have been duly authorized and, when
executed and authenticated in accordance with the Indenture and delivered to and
duly paid for by the purchasers thereof, will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the Company, enforceable
in accordance with their terms except to the extent that enforcement thereof may
be limited by the Enforceability Exceptions; and the Subordinated Debentures and
the Indenture will conform to the description thereof in the Prospectus;
(q) the Operative Documents conform in all material respects to the
summary descriptions thereof contained in the Prospectus;
(r) neither the Trust, the Company or any of its subsidiaries is, or
with the giving of notice or lapse of time or both would be, in violation of or
in default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which any of them is a party or by which any of
them or any of their respective properties is bound, except for violations and
defaults which individually and in the aggregate are not material to the Trust
or the Company and its subsidiaries taken as a whole; the execution and delivery
of the Operative Documents by the Trust or the Company, as the case may be, the
issue and sale of the Securities and the performance by the Trust or the Company
of all of the provisions of its obligations under the Securities and each of the
Operative Documents and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which any of them is a
party or bound or to which any of the property or assets
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of any of them is subject, nor will any such action result in any violation of
the provisions of the Restated Articles of Incorporation or By-Laws of the
Company or the Trust Agreement or organizational documents of the Trust, or any
applicable law or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Trust, the Company, its
subsidiaries or any of their respective properties; and no consent, approval,
authorization, order, license, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale of the
Securities or the consummation by the Company of the transactions contemplated
by this Agreement or the Indenture, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as have been
obtained under the Securities Act or the Trust Indenture Act and as may be
required under state securities or Blue Sky Laws in connection with the purchase
and distribution of the Securities by the Underwriters or from the Pennsylvania
Public Utility Commission and the Kentucky Public Service Commission in
connection with the issuance and sale of the Securities;
(s) other than as set forth in the Registration Statement, there are
no legal or governmental investigations, actions, suits or proceedings pending
or, to the knowledge of the Company or the Trust, threatened against or
affecting the Trust, or the Company or any of its subsidiaries or any of their
respective properties or to which the Trust, or the Company or any of its
subsidiaries is or may be a party or to which any property of the Trust, or the
Company or any of its subsidiaries or to which the Company or any of its
subsidiaries is or may be subject which, if determined adversely to the Trust,
or the Company or any of its subsidiaries, could individually or in the
aggregate reasonably be expected to have a material adverse effect on the
general affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of the Trust, or the Company and
its subsidiaries taken as a whole and, to the best of the Trust's and the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and there are no statutes,
regulations, contracts or other documents that are required to be filed as an
exhibit to the Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed or described as
required;
(t) the Trust, the Company and its subsidiaries each have good and
marketable title in fee simple to all items of real property and good and
marketable title to all personal property owned to them, in each case free and
clear of all liens, encumbrances and defects except such as are described or
referred to in the Prospectus or such as do not materially affect the value of
such property and do not interfere with the use made or proposed to be made of
such property by the Trust, the Company and its
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subsidiaries; and any real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, existing and
enforceable leases with such exceptions as are not material and do not interfere
with the use made or proposed to be made of such property and buildings by the
Company or its subsidiaries;
(u) no relationship, direct or indirect, exists between or among the
Company or any of its subsidiaries on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of its subsidiaries
on the other hand, which is required by the Securities Act to be described in
the Registration Statement and the Prospectus which is not so described;
(v) neither the Company nor the Trust is and, after giving effect to
the offering and sale of the Securities, will be an "investment company" or
entity "controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(w) the Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida) relating to doing business
with the Government of Cuba or with any person or affiliate located in Cuba;
(x) the Company and its subsidiaries have filed all federal, state,
local and foreign tax returns which have been required to be filed and have paid
all taxes shown thereon and all assessments received by them or any of them to
the extent that such taxes have become due and are not being contested in good
faith; and, except as disclosed in the Registration Statement and the
Prospectus, there is no tax deficiency which has been or might reasonably be
expected to be asserted or threatened against the Company or any of its
subsidiaries;
(y) each of the Trust, the Company and its subsidiaries owns,
possesses or has obtained all licenses,permits, certificates, consents, orders,
approvals and other authorizations from, and has made all declarations and
filings with, all federal, state, local and other governmental authorities
(including foreign regulatory agencies), all self-regulatory organizations and
all courts and other tribunals, domestic or foreign, necessary to own or lease,
as the case may be, and to operate its properties and to carry on its business
as conducted as of the date hereof, except where the failure to so own or
possess or to have so obtained or made would not, singly or in the aggregate,
have a material adverse effect on the Trust, the Company and its subsidiaries
taken as a whole, and neither the Trust, the Company nor any such subsidiary has
received any actual notice of any proceeding relating to revocation or
modification of any such license, permit, certificate, consent, order, approval
or other authorization, except as described in the
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Registration Statement and the Prospectus; and each of the Trust, the Company
and its subsidiaries is in compliance with all laws and regulations relating to
the conduct of its business as conducted as of the date hereof, except where the
failure to be in compliance would not, singly or in the aggregate, have a
material adverse effect on the Trust, the Company and its subsidiaries taken as
a whole;
(z) the Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their
respective businesses, (iii) are in compliance with all terms and conditions of
any such permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole, and (iv)
are not aware of any administrative or judicial action being contemplated by
governmental authorities relating to Environmental Laws; neither the Company nor
any of its subsidiaries is subject to any consent decree or compliance or
administrative order issued pursuant to, or are the subject of any pending
investigation or litigation under, applicable Environmental Laws except for such
actions, decrees, orders or investigations which do not and are not reasonably
expected to have a material adverse effect on, or cause material changes to, the
general affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole; and neither the Company nor any of its
subsidiaries is a party to a governmental proceeding arising under any
Environmental Law which involves potential monetary sanctions, exclusive of
interest and costs, of $100,000 or more;
(aa) in the ordinary course of its business, the Company reviews the
effect of Environmental Laws on the business, operations and properties of the
Company and its subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any potential liabilities to
third parties); and, on the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities would not, singly or in the
aggregate, have a material adverse effect on the Trust, the Company and its
subsidiaries, taken as a whole;
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(bb) there are no existing or, to the best knowledge of the Offerors,
threatened labor disputes with the employees of the Trust, the Company or any of
its subsidiaries which are likely to have a material adverse effect on the
Trust, the Company and its subsidiaries, taken as a whole;
(cc) each employee benefit plan, within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), that
is maintained, administered or contributed to by the Company or any of its
affiliates for employees or former employees of the Company and its affiliates
has been maintained in compliance with its terms and the requirements of any
applicable statutes, orders, rules and regulations, including but not limited to
ERISA and the Internal Revenue Code of 1986, as amended (the "Code"). No
prohibited transaction, within the meaning of Section 406 of ERISA or Section
4975 of the Code has occurred with respect to any such plan excluding
transactions effected pursuant to a statutory or administrative exemption. For
each such plan which is subject to the funding rules of Section 412 of the Code
or Section 302 of ERISA no "accumulated funding deficiency" as defined in
Section 412 of the Code has been incurred, whether or not waived, and the fair
market value of the assets of each such plan (excluding for these purposes
accrued but unpaid contributions) exceeded the present value of all benefits
accrued under such plan determined using reasonable actuarial assumptions;
(dd) the Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably expected to,
cause or result in stabilization or manipulation of the price of the Securities;
and
(ee) the Trust and the Company meet the requirements for the use of
Form S-3 under the Securities Act.
2. OFFERING. The Representative has advised the Company that the
Underwriters will make an offering of the Capital Securities purchased by such
Underwriters hereunder on the terms and conditions set forth in the Registration
Statement as soon as practicable after this Agreement is entered into, as in the
Representative's sole judgment is advisable.
3. PURCHASE AND DELIVERY; COMMISSION. The Trust hereby agrees to sell to
the Underwriters and each Underwriter, severally and not jointly, upon the basis
of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase from the Trust the aggregate
liquidation amount of Capital Securities set forth opposite such Underwriter's
name on Schedule I hereto.
As compensation to the Underwriters for their commitments hereunder, and in
view of the fact that the proceeds of the sale of
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the Capital Securities will be used by the Trust to purchase the Subordinated
Debentures of the Company, the Company hereby agrees to pay at the Time of
Delivery (as defined below) to the Representative, for the accounts of the
several Underwriters, an amount equal to $____ per Capital Security for the
Capital Securities to be delivered at the Time of Delivery.
Except as set forth in the next paragraph, the Capital Securities to be
purchased by each Underwriter hereunder will be represented by one or more
definitive global Capital Securities in book-entry form which will be deposited
by or on behalf of the Trust with The Depository Trust Company ("DTC") or its
designated custodian. The Trust will deliver the Capital Securities to the
Representative, for the account of each Underwriter, against payment by or on
behalf of such Underwriter of the purchase price therefor by certified or
official bank check or checks or fedwire, payable to the order of the Trust in
Federal (same day) funds, by causing DTC to credit the Capital Securities to the
account of the Representative at DTC. The Trust will cause the certificates
representing the Securities to be made available to the Representative for
checking at least 24 hours prior to the Time of Delivery (as defined below) at
the office of DTC or its designated custodian (the "Designated Office"). The
time and date of such delivery and payment shall be at the offices of Xxxxx &
Xxxx LLP, Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m, New
York time, on ____ ____, 1998 (the "Closing Date") or such other time and date
as the Representative, the Company and the Trust may agree upon in writing.
Such time and date are herein called the "Time of Delivery".
Such Capital Securities, if any, as the Representative may request upon at
least 48 hours' prior notice to the Trust (such request to include the
authorized denominations and the names in which they are to be registered),
shall be delivered in definitive certificated form, by and on behalf of the
Trust to the Representative for the account of certain of the Underwriters,
against payment by or on behalf of such Underwriter of the purchase price
therefor by fedwire, payable to the order of the Trust in Federal (same day)
funds. The Trust will cause the certificates representing the Capital
Securities to be made available for checking and packaging at least 24 hours
prior to the Time of Delivery at the office of the Trust Company, 0 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
4. CONDITIONS TO CLOSING. The several obligations of the Underwriters to
purchase and pay for the Capital Securities will be subject to the following
conditions:
(a) The Prospectus shall have been timely filed with the Commission in
accordance with Rule 430A of the Securities Act Regulations; and at the Closing
Date, the Registration Statement shall have been declared effective and no stop
order suspending the
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effectiveness of the Registration Statement or any part thereof shall have been
issued under the Securities Act or proceedings therefor initiated or threatened
by the Commission; and any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus shall have been
complied with to the reasonable satisfaction of counsel to the Underwriters.
(b) The Underwriters shall have received, on the Closing Date, a
certificate signed by the Chairman of the Board, the President, a Vice Chairman
of the Board or any Executive or Senior Vice President and the principal
financial or accounting officer of the Company, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined the
Registration Statement and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the Closing
Date with the same effect as if made on the Closing Date and the Company has
complied in all material respects with all the agreements and satisfied in all
material respects all the conditions on its part to be performed or satisfied at
or prior to the Closing Date;
(ii) since the date of the most recent financial statements included
in the Registration Statement (exclusive of any supplement thereto),there has
been no material adverse change in the condition (financial or other),earnings,
business or properties of the Company and its subsidiaries taken as a whole,
whether or not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Registration Statement(exclusive
of any supplement thereto);
(iii) the Offerors have complied with all agreements and satisfied all
conditions on their part to be performed or satisfied at or prior to the Closing
Date; and
(iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or, to each such officer's knowledge, are contemplated
by the Commission.
(c) Subsequent to the date hereof or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof), there shall not have been any change, or any development
involving a prospective change, in or affecting the business or properties of
the Trust, the Company and its subsidiaries the effect of which is, in the
judgment of the Underwriters, so material and adverse as to make it impractical
or inadvisable to proceed with the offering or the delivery of the Capital
Securities as contemplated by the Registration Statement (exclusive of any
amendment thereof).
13
(d) The Underwriters shall have received an opinion, dated the Closing
Date, of __________________, special tax counsel for the Offerors, substantially
in the form attached hereto as Exhibit A. Insofar as such opinions involve
factual matters, such counsel may rely, to the extent such counsel deems proper,
upon certificates of officers of the Company, its subsidiaries and the Trust and
certificates of public officials.
(e) The Underwriters shall have received opinions, dated the Closing
Date, of Xxxxxxx X. X'Xxxxxxxx, Esq., General Counsel to the Company, and Reed,
Smith, Xxxx & XxXxxx, counsel to the Company, substantially in the form attached
hereto as Exhibit B-1 and B-2, respectively. Insofar as such opinions involve
factual matters, such counsel may rely, to the extent such counsel deems proper,
upon certificates of officers of the Company, its subsidiaries and the Trust,
and certificates of public officials.
(f) The Underwriters shall have received an opinion, dated the Closing
Date, of Xxxxxx & Xxxxxxx, counsel to the Trust Company and Trust Delaware,
substantially in the form attached hereto as Exhibit C.
(g) The Underwriters shall have received an opinion, dated the Closing
Date, of Xxxxx & Wood LLP, counsel to the Underwriters as to such matters as the
Underwriters shall reasonably request. In rendering such opinion, counsel may
rely upon an opinion or opinions,each dated the Closing Date, of other counsel
retained by them or the Company as to laws of any jurisdiction other than the
United States or the State of New York, provided that (A) such reliance is
expressly authorized by each opinion so relied upon and a copy of each such
opinion is delivered to the Underwriters, and (B) counsel shall state in their
opinion that they believe that they and the Underwriters are justified in
relying thereon. Insofar as such opinions involve factual matters, such counsel
may rely, to the extent such counsel deems proper, upon certificates of officers
of the Company, its subsidiaries and the Trust and certificates of public
officials.
(h) The Underwriters shall have received an opinion, dated the Closing
Date, of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the
Offerors, substantially to the effect and in the form attached hereto as Exhibit
D.
(i) On the Closing Date, the Capital Securities shall be rated at
least _____ by Xxxxx'x Investor Service, Inc. ("Moody's") and ____ by Standard &
Poor's Rating Services, a division of McGraw Hill, Inc. ("S&P"), and the Trust
shall have delivered to the Underwriters a letter dated the Closing Date, from
each such rating agency, or other evidence satisfactory to the Underwriters,
confirming that the Capital Securities have such ratings; and on or prior to the
Closing Date, no downgrading in the rating accorded the Capital Securities or
any other debt securities of the Company
14
by any "nationally recognized statistical rating organization" (as that term is
defined by the Commission for the purposes of Rule 436(g)(2) under the
Securities Act) shall have occurred, or any public announcement that any such
organization has under surveillance or review their ratings of the Capital
Securities or any other debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating), and if, in any such
case, the effect thereof in the reasonable judgment of the Underwriters makes it
impracticable or inadvisable to proceed with the purchase of the Capital
Securities.
(j) At the time of the execution of this Agreement, the Underwriters
shall have received a letter, dated such date, in form and substance reasonably
satisfactory to them, from Ernst & Young LLP, independent public accountants of
the Company, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information, including the financial
information contained or incorporated by reference in the Registration Statement
as identified by the Representative.
(k) At the Closing Date, the Representatives shall have received from
Ernst & Young LLP a letter, dated as of the Closing Date, to the effect that
they reaffirm the statements made in the letter furnished pursuant to subsection
(i) of this Section, except that the specified date referred to shall be a date
not more than three business days prior to the Closing Date.
(l) Prior to the Closing Date, the Company shall have furnished to the
Underwriters such further information, certificates and documents as the
Underwriters may reasonably request in connection with the offering of the
Capital Securities.
5. COVENANTS OF THE OFFERORS. In further consideration of the agreements
of the Underwriters herein contained, the Offerors covenant as follows:
(a) The Offerors will prepare the Prospectus in a form approved by the
Underwriters and will file such Prospectus with the Commission pursuant to
subparagraph (1) or (4) of Rule 424(b) not later than the Commission's close of
business on the second business day following the execution and delivery of this
Agreement. The Offerors will notify the Underwriters immediately, and confirm
the notice in writing, (i) of the effectiveness of the Registration Statement
and any amendment thereto(including any post-effective amendment), and of the
filing of the Prospectus pursuant to Rule 424(b), (ii) of the receipt of any
comments from the Commission, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending
15
the effectiveness of the Registration Statement or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus, of the
suspension of the qualification of the securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceeding for such
purpose. The Offerors will make every reasonable effort to prevent the issuance
of any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any such qualification
and, if any such order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) The Offerors will deliver to the Underwriters, without charge, one
manually executed copy of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated by reference into the Prospectus),
such number of conformed copies of the Registration Statement as originally
filed and of each amendment thereto (including documents incorporated by
reference into the Prospectus but without exhibits) as such Underwriters may
reasonably request and copies of each Preliminary Prospectus, the Prospectus and
any amended or supplemented Prospectus.
(c) The Offerors will furnish to the Underwriters, without charge,
from time to time during the period when the Prospectus is required to be
delivered under the Securities Act and the Securities Exchange Act, such number
of copies of the Prospectus (as amended or supplemented, if applicable) as they
may reasonably request for the purposes contemplated by the Securities Act or
the Securities Act Regulations. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(d) The Offerors will deliver to the Underwriters notice of their
intention to prepare or file any amendment to the Registration Statement
relating to the Capital Securities (including any post-effective amendment) or
any amendment or supplement to the Prospectus (other than documents deemed to be
incorporated by reference into the Prospectus) which the Trust and the Company
propose for use by the Underwriters in connection with the offering of the
Capital Securities and which differs from the prospectus on file at the
Commission at the time the Registration Statement becomes effective,whether or
not such revised prospectus is required to be filed pursuant to Rule 424(b) of
the Securities Act Regulations), will furnish the Underwriters and counsel for
the Underwriters with copies of any such amendment or supplement a reasonable
amount of time prior to such proposed filing or use, as the case maybe, and will
not file any such amendment or supplement or use any such prospectus to which
the Underwriters or counsel for the Underwriters shall reasonably object.
16
(e) If, during such period after the Closing Date and prior to the
date on which the distribution of Capital Securities by the Underwriters is
completed, any event shall occur as a result of which it is necessary, in the
opinion of the Offerors' counsel, to amend or supplement the Prospectus (as then
amended or supplemented) in order to ensure that the Prospectus does not contain
an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or it is necessary to amend or
supplement the Prospectus to comply with law, forthwith to prepare and furnish,
at the Company's own expense, to the Underwriters, 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 under which
they were made, be misleading or so that the Prospectus will comply with law, as
the case may be.
(f) The Trust and the Company, during the period when the Prospectus
is required to be delivered under the Securities Act, will file promptly all
documents required to be filed with the Commission pursuant to Section 13, 14 or
15 of the Exchange Act subsequent to the time the Registration Statement becomes
effective.
(g) To endeavor to qualify the Capital Securities for offer and sale
under the securities or blue sky laws of such jurisdictions as any Underwriter
shall reasonably request and to pay all reasonable expenses (including
reasonable fees and disbursements of counsel) in connection with such
qualification and the printing of any memoranda concerning the aforesaid
qualification; provided, however, that neither Offeror shall be required to
qualify to do business in any jurisdiction where it is not now qualified or to
take any action which would subject it to general or unlimited service of
process in any jurisdiction where they are not now subject.
(h) During the period beginning on the date hereof and continuing to
and including the Closing Date, not to offer, sell, contract to sell or
otherwise dispose of (other than in an offering made exclusively outside the
United States) any securities of the Company or the Trust substantially similar
to the Capital Securities or any securities convertible into or exchangeable for
the Capital Securities without the prior written consent of the Underwriters.
(i) During the period when the Capital Securities are outstanding, the
Company will not be or become an open-end investment company, unit investment
trust or face-amount certificate company that is or is required to be registered
under Section 8 of the Investment Company Act.
17
(j) Neither the Company nor the Trust shall enter into any contractual
agreement with respect to the distribution of the Capital Securities except for
the arrangements with the Underwriters.
(k) The Company will make generally available to its securityholders,
as soon as it is practicable to do so, but in any event not later than 15 months
after the effective date of the Registration Statement, an earnings statement
(which need not be audited) in reasonable detail, covering a period of at least
12 consecutive months beginning on the first day of the first full fiscal
quarter after the effective date of the Registration Statement, which earnings
statement shall satisfy the requirements of Section 11(a) of the Securities Act
and Rule 158 of the Securities Act Regulations and will advise you in writing
when such statement has been so made available. If such fiscal quarter is the
last fiscal quarter of the Company's fiscal year, such earnings statement shall
be made available not later than 90 days after the close of the period covered
thereby and in all other cases shall be made available not later than 45 days
after the close of the period covered thereby.
(l) For a period of five years (but not beyond any such date on which
no Securities shall be outstanding) after the Closing Date, the Offerors will
furnish to the Underwriters copies of all reports and communications delivered
to the Trust's shareholders or to holders of the Capital Securities and will
also furnish copies of all reports (excluding exhibits) filed with the
Commission on Forms 8-K, 10-Q and 10-K, and all other reports and information
furnished to its shareholders generally, not later than the time such reports
are first furnished to its shareholders generally.
(m) The Offerors shall take all reasonable action necessary to enable
Moody's and S&P to provide their respective credit ratings of the Capital
Securities.
(n) The Offerors will cooperate with the Underwriters and use their
best efforts to permit the Capital Securities to be eligible for clearance and
settlement through the facilities of DTC.
(o) The Trust will use the net proceeds received by it from the sale
of the Capital Securities; and the Company will use the proceeds received by it
from the sale of the Subordinated Debentures, in the manners specified in the
Prospectus under "Use of Proceeds".
6. EXPENSES. The Company covenants and agrees with the Underwriters that
the Company will, whether or not any sale of the Capital Securities is
consummated, pay or cause to be paid the following: (i) costs of preparation and
printing (including reasonable word processing and duplication costs) of the
18
Registration Statement and the Prospectus, and all amendments and supplements
thereto, (ii) all expenses and disbursements of counsel to the Company and the
Trust, (iii) all costs and expenses incurred in connection with the preparation,
issuance and delivery of the Capital Securities, (iv) the fees and disbursements
of the Company's accountants, (v) all costs and expenses incurred in the
preparation and the printing (including word processing and duplication costs)
of the Capital Securities, the Indenture, the Guarantee Agreements, the Trust
Agreement and all other documents relating to the issuance, purchase and initial
resale of the Capital Securities, (vi) rating agency fees, (vii) fees and
expenses of any trustee appointed under any of the Operative Documents,
including reasonable fees and expenses of counsel for such trustees and (viii)
all other costs and expenses incident to the performance by the Company of its
obligations hereunder which are not otherwise specifically provided in this
Section. The Underwriters shall be responsible for all of their own expenses,
including the fees of the Underwriters' counsel.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) Each of the Company and the Trust jointly and severally agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls each such Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, or arising out of any omission or alleged omission to state
therein 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, except insofar as such losses, claims, damages or liabilities
are caused by any such untrue statement or omission based upon information
furnished in writing to the Company by the Underwriters through the
Representative expressly for use therein; provided, however, that the foregoing
indemnity agreement with respect to the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto shall not
inure to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Capital Securities, or any
person controlling such Underwriter, if a copy of the Registration Statement (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 at or prior to the written confirmation of the sale
of the Capital Securities to such persons, and if the Registration Statement (as
so amended or supplemented) would have cured the defect giving rise to such
loss, claim, damage or liability. This indemnity agreement shall be in
19
addition to any liability that the Company or Trust may otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, the Trust, any authorized representative of the
Company or the Trust and any person controlling the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act, to the
same extent as the foregoing indemnity from the Company and the Trust to the
Underwriters, but only with reference to information furnished in writing by
such Underwriter expressly for use in the Registration Statement and any
amendments or supplements thereto. This indemnity agreement shall be in
addition to any liability that any Underwriter may otherwise have.
(c) In case any proceeding (including any governmental investigation)
shall be threatened or instituted involving any person in respect of which
indemnity may be sought pursuant to paragraph (a) or (b) of this Section 7, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing (but the
omission to so notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party other than under this
Section 7) and the indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and pay the reasonable 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 fees and
expenses of such counsel shall be at the expense of the indemnified party unless
(i) the indemnifying party and the indemnified party shall have mutually agreed
to retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and the representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them. It is understood that the indemnifying party shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees and expenses of more than one separate firm for all such
indemnified parties. In the case of parties indemnified pursuant to paragraph
(a) of this Section 7, such separate firm shall be designated in writing by the
Representative. In the case of parties indemnified pursuant to paragraph (b) of
this Section 7, such separate firm shall be designated in writing by the
Company. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but if settled with such consent
or if there be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from
20
and against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under paragraphs (a) or (b) hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Offerors on the one hand and the Underwriters on the other hand in
connection with the offering of the Capital Securities pursuant to this
Agreement or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Offerors on the one hand and of the Underwriters on the other hand
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Offerors on the one hand
and the Underwriters on the other hand in connection with the offering of such
Capital Securities shall be deemed to be in the same proportion as the total net
proceeds (before deducting expenses) from the offering of such Capital
Securities received by the Company bear to the total discounts and commissions
received by such Underwriter in respect thereof. The relative fault of the
Offerors on the one hand and of the Underwriters on the other hand 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 Offerors or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statements or omissions.
(e) The Company, the Trust and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation or by any other method of allocation that does
not take account of the considerations referred to in paragraph (d) of this
Section 7. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in paragraph (d) of this
Section 7 shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim.
(f) The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Company, the Trust and
the Underwriters in this Agreement shall remain operative and in full force and
effect regardless of (i) any
21
termination of this Agreement, (ii) any investigation made by or on behalf of a
Underwriter or any person controlling such Underwriter, or by or on behalf of
the Trust or the Company, its directors or officers, any authorized
representative of the Company or the Trust or any person controlling the Company
or the Trust, and (iii) acceptance of and payment for any of the Capital
Securities.
8. TERMINATION.
(a) This Agreement shall be subject to termination in the absolute
discretion of the Representative, by notice to the Company, if at or prior to
the Closing Date (i) there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the business affairs or business prospects of the Trust or the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, (ii) trading in securities generally
on the New York Stock Exchange shall have been suspended or materially limited,
(iii) a general moratorium on commercial banking activities in New York shall
have been declared by either Federal or New York State authorities, or (iv)
there shall have occurred any material outbreak or escalation of hostilities or
other calamity or crisis the effect of which on the financial markets of the
United States is such as to make it, in the reasonable judgment of the
Representative, impracticable to market the Capital Securities or to enforce
contracts for the resale of Capital Securities.
(b) The Company may terminate this Agreement upon written notice to
the Representative at any time at or prior to the Closing Date if the Company
shall receive the reasonable opinion of _________________, its special tax
counsel, following consultation with the Representative and its counsel, that
there is more than an insubstantial risk that interest payable by the Company on
the Subordinated Debentures will not be deductible by the Company for federal
income tax purposes as a result of action taken on any federal legislative tax
proposal. If this Agreement is terminated pursuant to this Section 8, such
termination shall be without liability of any party to any other party, except
as provided in Section 6, and Sections 1 and 7 shall survive such termination
and remain in full force and effect.
9. PRO RATA PURCHASE IN CERTAIN EVENTS. If on the Closing Date any one
or more of the Underwriters shall fail or refuse to purchase Capital Securities
that it or they have agreed to purchase hereunder and the aggregate liquidation
amount of Capital Securities that such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate liquidation amount of Capital Securities to be purchased on such date,
the other Underwriters shall be obligated severally and not jointly in the
proportions which the aggregate liquidation
22
amount of Capital Securities set forth opposite their names in Schedule I to
this Agreement bears to the aggregate liquidation amount of Capital Securities
set forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as the Representative may specify, to purchase the Capital
Securities that such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date. If on the Closing Date any Underwriter or
Underwriters shall fail or refuse to purchase Capital Securities and the
aggregate liquidation amount of Capital Securities with respect to which such
default occurs is more than one-tenth of the aggregate liquidation amount of
Capital Securities to be purchased on such date, and arrangements satisfactory
to the Representative and the Company for the purchase of such Capital
Securities are not made within 36 hours after such default, this Agreement shall
thereupon terminate without liability on the part of any non-defaulting
Underwriters or of the Company or the Trust. In any such case either the
Representative or the Company shall have the right to postpone the Closing Date,
but in no event for longer than seven (7) days, in order that the required
changes, if any, in the Registration Statement or in any other documents or
arrangements may be effected. An action taken under this Section 9 shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
10. REIMBURSEMENT UPON TERMINATION IN CERTAIN CIRCUMSTANCES. 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 in any material respect
with the terms or to fulfill in any material respect any of the conditions of
this Agreement, or if for any reason the Company shall be unable to perform in
any material respect its obligations under this Agreement, the Company shall
reimburse the Underwriters or such Underwriters as have so terminated the
Agreement, with respect to themselves, severally, for all reasonable out-of-
pocket expenses reasonably incurred by such Underwriters in connection with the
offering of the Capital Securities.
11. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to the Representatives c/o Morgan Xxxxxxx at 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Syndicate Desk, Managing Director, with a copy to
Xxxxx & Wood LLP, Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxxxx Xxxxxxxx, Esq.; notices to the Offerors shall be directed to Equitable
Resources, Inc., 420 Boulevard of the Allies, Xxxxxxxxxx, Xxxxxxxxxxxx 00000,
Attention: Xxxxxxx X. X'Xxxxxxxx, General Counsel, with a copy to Reed, Smith,
Xxxx & XxXxxx, 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000, Attention:
Xxxxxx Xxxxxx, Esq.
23
12. PARTIES. This Agreement shall each inure to the benefit of and be
binding upon the Underwriters and the Offerors and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Offerors and their respective successors and the controlling persons and
officers, directors and trustees referred to in Section 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Offerors and their respective
successors, and said controlling persons and officers, directors and trustees
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Capital Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
13. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
24
Please confirm that the foregoing correctly sets forth the agreement among
the Trust, the Company and the several Underwriters by having an authorized
officer sign a copy of this Agreement in the space set forth below and by
returning the signed copy to us.
Very truly yours,
EQUITABLE RESOURCES, INC.
By: __________________________
Name:
Title:
EQUITABLE RESOURCES CAPITAL
TRUST I
By: EQUITABLE RESOURCES, INC.
on behalf of Equitable
Capital Trust I
By: ___________________________
Name:
Title:
Accepted by:
XXXXXX XXXXXXX & CO. INCORPORATED,
as representative of the several
Underwriters named in Schedule I hereto
By: ________________________________
Name:
Title:
25
SCHEDULE I
Underwriter Amount
----------- ------
Xxxxxx Xxxxxxx & Co. Incorporated $
$
$___________
Total $125,000,000
===========
EXHIBIT A
The opinion of ________________, special tax counsel to the Company, to be
delivered pursuant to Section 4(d) of the Underwriting Agreement shall be
substantially to the effect that:
EXHIBIT B-1
The opinion of Xxxxxxx X. X'Xxxxxxxx, Esq, General Counsel to the Company,
to be delivered pursuant to Section 4(e) of the Underwriting Agreement shall be
substantially to the effect that:
EXHIBIT B-2
The opinion of Read, Xxxxx, Xxxx & XxXxxx, counsel to the Company, to be
delivered pursuant to Section 4(e) of the Underwriting Agreement shall be
substantially to the effect that:
EXHIBIT C
The opinion of Xxxxxx & Xxxxxxx, counsel to the Trust Company and Trust
Delaware, to be delivered pursuant to Section 4(f) of the Underwriting Agreement
shall be substantially to the effect that:
EXHIBIT D
The opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to
the Offerors, to be delivered pursuant to Section 4(h) of the Underwriting
Agreement shall be substantially to the effect that:
