Exhibit 4.02
EXECUTION COPY
EQUITABLE RESOURCES, INC.
$ 200,000,000
5.15% Notes due 2012
PURCHASE AGREEMENT
November 7, 2002
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Banc of America Securities LLC
As Representatives of the
several Initial Purchasers listed
in Schedule 1 hereto
c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Equitable Resources, Inc., a Pennsylvania corporation (the "Company"),
proposes to issue and sell to the several Initial Purchasers listed in Schedule
1 hereto (the "Initial Purchasers"), for whom you are acting as representatives
(the "Representatives"), $200,000,000 principal amount of its 5.15% Notes due
2012 (the "Notes"). The Notes will be issued pursuant to an Indenture dated as
of July 1, 1996 between the Company and The Bank of New York, as successor
trustee to the Bank of Montreal Trust Company (the "Trustee").
The Notes will be sold to the Initial Purchasers without being
registered under the Securities Act of 1933, as amended (the "Securities Act"),
in reliance upon an exemption therefrom. The Company has prepared a preliminary
offering memorandum dated November 7, 2002 (the "Preliminary Offering
Memorandum") and will prepare an offering memorandum dated the date hereof (the
"Offering Memorandum") setting forth information concerning the Company and the
Notes. Copies of the Preliminary Offering Memorandum have been, and copies of
the Offering Memorandum will be, delivered by the Company to the Initial
Purchasers pursuant to the terms of this Agreement. Capitalized terms used but
not defined herein shall have the meanings given to such terms in the Offering
Memorandum. References herein to the Preliminary Offering Memorandum and the
Offering Memorandum shall be deemed to refer to and include any document
incorporated by reference therein.
Holders of the Notes (including the Initial Purchasers and their
direct and indirect transferees) will be entitled to the benefits of a
Registration Rights Agreement, to be dated the Closing Date (as defined below)
and substantially in the form attached hereto as Exhibit A (the "Registration
Rights Agreement"), pursuant to which the Company will agree to file one or more
registration statements with the Securities and Exchange Commission (the
"Commission") providing for the registration under the Securities Act of the
Notes or the Exchange Notes referred to (and as defined) in the Registration
Rights Agreement.
The Company hereby confirms its agreement with the several Initial
Purchasers concerning the purchase and resale of the Notes, as follows:
1. PURCHASE AND RESALE OF THE NOTES. (a) The Company agrees to issue
and sell the Notes to the several Initial Purchasers as provided in this
Agreement, and each Initial Purchaser, on the basis of the representations,
warranties and agreements set forth herein and subject to the conditions set
forth herein, agrees, severally and not jointly, to purchase from the Company
the respective principal amount of Notes set forth opposite such Initial
Purchaser's name in Schedule 1 hereto at a price equal to 99.24% of the
principal amount. The Company will not be obligated to deliver any of the Notes
except upon payment for all the Notes to be purchased as provided herein.
(b) The Company understands that the Initial Purchasers intend to
offer the Notes for resale on the terms set forth in the Offering Memorandum.
Each Initial Purchaser, severally and not jointly, represents, warrants and
agrees that:
(i) it is a qualified institutional buyer within the meaning
of Rule 144A under the Securities Act (a "QIB") and an accredited
investor within the meaning of Rule 501(a) under the Securities Act;
(ii) it has not solicited offers for, or offered or sold, and
will not solicit offers for, or offer or sell, the Notes by means of
any form of general solicitation or general advertising within the
meaning of Rule 502(c) of Regulation D under the Securities Act
("Regulation D") or in any manner involving a public offering within
the meaning of Section 4(2) of the Securities Act; and
(iii) it has not solicited offers for, or offered or sold, and
will not solicit offers for, or offer or sell, the Notes as part of
their initial offering except:
(A) to persons within the United States whom it reasonably
believes to be QIBs in transactions pursuant to Rule 144A under the
Securities Act ("Rule 144A") and in connection with each such sale,
it has taken or will take reasonable steps to ensure that the
purchaser of the Notes is aware that such sale is being made in
reliance on Rule 144A; or
(B) to persons outside the United States in accordance
with the restrictions set forth in Annex A hereto.
(c) Each Initial Purchaser acknowledges and agrees that the Company,
for purposes of the opinions to be delivered to the Initial Purchasers pursuant
to Sections 5(f) and 5(g), counsel
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for the Company and counsel for the Initial Purchasers, respectively, may rely
upon the accuracy of the representations and warranties of the Initial
Purchasers, and compliance by the Initial Purchasers with their agreements,
contained in paragraph (b) above (including Annex A hereto), and each Initial
Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers
may offer and sell Notes to or through any affiliate of an Initial Purchaser and
that any such affiliate may offer and sell Notes purchased by it to or through
any Initial Purchaser.
2. PAYMENT AND DELIVERY. (a) Payment for and delivery of the Notes
will be made at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ at 10:00 A.M., New
York City time, on November 15, 2002, or at such other time or place on the same
or such other date, not later than the fifth business day thereafter, as the
Representatives and the Company may agree upon in writing. The time and date of
such payment and delivery is referred to herein as the "Closing Date".
(b) Payment for the Notes shall be made by wire transfer in
immediately available funds to the account(s) specified by the Company to the
Representatives against delivery to the nominee of The Depository Trust Company,
for the account of the several Initial Purchasers, of global notes representing
the Notes purchased by the Initial Purchasers (collectively, the "Global
Notes"). The Global Notes will be made available for inspection by the
Representatives not later than 1:00 P.M., New York City time, on the business
day prior to the Closing Date.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Initial Purchaser that:
(a) OFFERING MEMORANDUM. The Offering Memorandum does not, and as of
the Closing Date, will not, contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
PROVIDED that the Company makes no representation or warranty with respect to
any statements or omissions made in reliance upon and in conformity with
information relating to any Initial Purchaser furnished to the Company in
writing by such Initial Purchaser through the Representatives expressly for use
in the Offering Memorandum.
(b) INCORPORATED DOCUMENTS. The documents incorporated by reference in
the Preliminary Offering Memorandum and the Offering Memorandum, when filed with
the Commission, conformed or will conform, as the case may be, in all material
respects with the requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(c) FINANCIAL STATEMENTS. The financial statements and the related
notes thereto included or incorporated by reference in the Offering Memorandum
comply in all material respects with the applicable requirements of the
Securities Act and the Exchange Act, as applicable, and present fairly the
financial position of the Company and its subsidiaries as of the dates indicated
and the results of their operations and the changes in their cash flows for the
periods specified; such financial statements have been prepared in conformity
with generally accepted accounting
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principles applied on a consistent basis throughout the periods covered thereby
except as may be expressly stated in the related notes thereto; and the other
financial information included or incorporated by reference in the Offering
Memorandum has been derived from the accounting records of the Company and its
subsidiaries and presents fairly the information shown thereby.
(d) NO MATERIAL ADVERSE CHANGE. Since the respective dates as of which
information is given in the Offering Memorandum, (i) there has not been any
change in the capital stock or long-term debt of the Company or any of its
subsidiaries, 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,
except as otherwise disclosed or contemplated in the Offering Memorandum; and
(ii) except as set forth or contemplated in the Offering Memorandum neither the
Company nor any of its subsidiaries has entered into any transaction or
agreement material to the Company and its subsidiaries taken as a whole other
than in the ordinary course of business.
(e) ORGANIZATION. The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate or other) to
own its properties and conduct its business as described in the Offering
Memorandum, 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.
(f) SUBSIDIARIES. 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 its properties and conduct its business as described in the Offering
Memorandum, 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.
(g) DUE AUTHORIZATION. This Agreement and the Registration Rights
Agreement have been duly authorized, executed and delivered by the Company.
(h) THE INDENTURE. The Indenture has been duly authorized, executed
and delivered by the Company and is a valid and binding agreement of the
Company, enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability; and the Indenture (including any amendments and
supplements thereto) will conform on the
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Closing Date with all requirements of the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act") and the applicable rules and regulations
promulgated thereunder by the Commission applicable to an indenture that is
qualified thereunder.
(i) THE NOTES. The Notes 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 as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability; the
Notes, when executed and authenticated in accordance with the Indenture and
delivered to and duly paid for by the purchasers thereof, will rank PARI PASSU
with all Notes (as defined in the Indenture) issued and to be issued under the
Indenture and all other unsecured debt of the Company which is not expressly
subordinated; and the Notes and the Indenture will conform to the description
thereof in the Offering Memorandum.
(j) THE EXCHANGE NOTES. On the Closing Date, the Exchange Notes will
have been duly authorized by the Company and, when duly executed and
authenticated in accordance with the Registration Rights Agreement, will be
entitled to the benefits of the Indenture and will be valid and binding
obligations of the Company enforceable against the Company in accordance with
its terms, except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
(ii) rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability.
(k) NO VIOLATION OR DEFAULT. Neither the Company nor 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, its Restated Articles of Incorporation or
By-Laws or any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries is a
party or by which it or 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 Company and its subsidiaries taken as a whole
or to the holders of the Notes; the issue and sale of the Notes and the
performance by the Company of all the provisions of its obligations under the
Notes, the Indenture, this Agreement and the Registration Rights Agreement 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 the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company or any of its
subsidiaries 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 any applicable law or statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over 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
Notes or the consummation by the Company of the transactions contemplated by
this Agreement, the Registration Rights Agreement or the Indenture, except such
consents, approvals, authorizations, orders, licenses, registrations or
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qualifications as may be required under state securities laws in connection with
the purchase and distribution of the Notes by the Initial Purchasers or from the
Pennsylvania Public Utility Commission and the Kentucky Public Service
Commission in connecting with the issuance and sale of the Notes.
(l) LEGAL PROCEEDINGS. Other than as set forth or contemplated in the
Offering Memorandum, there are no legal or governmental investigations, actions,
suits or proceedings pending or, to the knowledge of the Company, threatened
against or affecting the Company or any of its subsidiaries or any of their
respective properties or to which the Company or any of its subsidiaries is or
may be a party or to which any property of 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 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 Company and its subsidiaries taken as a whole and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(m) PROPERTY. The Company and its subsidiaries have good and
marketable title in fee simple to all items of real property and good and
marketable title to all personal property owned by them, in each case free and
clear of all liens, encumbrances and defects except such as are described or
referred to in the Offering Memorandum 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 Company and its 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.
(n) INVESTMENT COMPANY ACT. The Company is not and, after giving
effect to the offering and sale of the Notes, will not 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").
(o) TAXES. Except to the extent that any such failures would not,
individually or in the aggregate, have material adverse effect on the Company
and its subsidiaries taken as a whole, 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 Offering
Memorandum, 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.
(p) CONDUCT OF BUSINESS. Each of 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,
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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 Company and its subsidiaries taken as a
whole, and neither the Company nor any such subsidiary has received any actual
notice of any proceeding, relating to the revocation or modification of any such
license, permit, certificate, consent, order, approval or other authorization,
except as described in the Offering Memorandum; and each of 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 Company and its subsidiaries taken as a whole.;
(q) ENVIRONMENTAL COMPLIANCE. 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 are 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
interests and costs, of $100,000 or more.
(r) ENVIRONMENTAL COSTS. In the ordinary course of 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 Company and
its subsidiaries, taken as a whole.
(s) NO LABOR DISPUTES. There are no existing or, to the best knowledge
of the Company, threatened labor disputes with the employees of the Company or
any of its subsidiaries which are likely to have a material adverse effect on
the Company and its subsidiaries taken as a whole.
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(t) EMPLOYEE BENEFITS. 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.
(u) RULE 144A ELIGIBILITY. On the Closing Date, the Notes will not be
of the same class as securities listed on a national securities exchange
registered under Section 6 of the Exchange Act or quoted in an automated
inter-dealer quotation system; and each of the Preliminary Offering Memorandum
and the Offering Memorandum, as of its respective date, contains or will contain
all the information that, if requested by a prospective purchaser of the Notes,
would be required to be provided to such prospective purchaser pursuant to Rule
144A(d)(4) under the Securities Act.
(v) NO INTEGRATION. Neither the Company nor any of its affiliates (as
defined in Rule 501(b) of Regulation D) has, directly or through any agent,
sold, offered for sale, solicited offers to buy or otherwise negotiated in
respect of, any security (as defined in the Securities Act), that is or will be
integrated with the sale of the Notes in a manner that would require
registration of the Notes under the Securities Act.
(w) NO GENERAL SOLICITATION OR DIRECTED SELLING EFFORTS. Neither of
the Company nor any of its affiliates or any other person acting on its or their
behalf (other than the Initial Purchasers, as to which no representation is
made) has (i) solicited offers for, or offered or sold, the Notes by means of
any form of general solicitation or general advertising within the meaning of
Rule 502(c) of Regulation D or in any manner involving a public offering within
the meaning of Section 4(2) of the Securities Act or (ii) engaged in any
directed selling efforts within the meaning of Regulation S under the Securities
Act ("Regulation S"), and all such persons have complied with the offering
restrictions requirement of Regulation S.
(x) SECURITIES LAW EXEMPTIONS. Assuming the accuracy of the
representations and warranties of the Initial Purchasers contained in Section
1(b) (including Annex A hereto) and their compliance with their agreements set
forth therein, it is not necessary, in connection with the issuance and sale of
the Notes to the Initial Purchasers and the offer, resale and delivery of the
Notes by the Initial Purchasers in the manner contemplated by this Agreement and
the Offering Memorandum, to register the Notes under the Securities Act or to
qualify the Indenture under the Trust Indenture Act.
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4. FURTHER AGREEMENTS OF THE COMPANY. The Company covenants and
agrees with each Initial Purchaser that:
(a) DELIVERY OF COPIES. The Company will deliver to the Initial
Purchasers as many copies of the Preliminary Offering Memorandum and the
Offering Memorandum (including all amendments and supplements thereto) as the
Representatives may reasonably request.
(b) AMENDMENTS OR SUPPLEMENTS. Before making or distributing any
amendment or supplement to the Offering Memorandum or filing with the Commission
any document that will be incorporated by reference therein, the Company will
furnish to the Representatives and counsel for the Initial Purchasers a copy of
the proposed amendment or supplement or document to be incorporated by reference
therein for review, and will not distribute any such proposed amendment or
supplement or file any such document with the Commission to which the
Representatives reasonably objects.
(c) NOTICE TO THE REPRESENTATIVES. The Company will advise the
Representatives promptly, and confirm such advice in writing, (i) of the
issuance by any governmental or regulatory authority of any order preventing or
suspending the use of the Preliminary Offering Memorandum or the Offering
Memorandum or the initiation or threatening of any proceeding for that purpose;
(ii) of the occurrence of any event at any time prior to the completion of the
initial offering of the Notes as a result of which the Offering Memorandum as
then amended or supplemented would include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing when the Offering Memorandum
is delivered to a purchaser, not misleading; and (iii) of the receipt by the
Company of any notice with respect to any suspension of the qualification of the
Notes for offer and sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and the Company will use their reasonable best
efforts to prevent the issuance of any such order preventing or suspending the
use of the Preliminary Offering Memorandum or the Offering Memorandum or
suspending any such qualification of the Notes and, if any such order is issued,
will obtain as soon as possible the withdrawal thereof.
(d) ONGOING COMPLIANCE OF THE OFFERING MEMORANDUM. If at any time
prior to the completion of the initial offering of the Notes by the Initial
Investors but no later than the date of the consummation of the Exchange Offer,
(i) any event shall occur or condition shall exist as a result of which the
Offering Memorandum as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances existing
when the Offering Memorandum is delivered to a purchaser, not misleading or (ii)
it is necessary to amend or supplement the Offering Memorandum to comply with
law, the Company will immediately notify the Initial Purchasers thereof and
forthwith prepare and, subject to paragraph (b) above, file with the Commission
any document to be incorporated by reference therein and furnish to the Initial
Purchasers such amendments or supplements to the Offering Memorandum as may be
necessary so that the statements in the Offering Memorandum as so amended or
supplemented (or including such document to be incorporated by reference
therein) will not, in the light of the circumstances existing when the Offering
Memorandum is delivered to a purchaser, be misleading or so that the Offering
Memorandum will comply with law.
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(e) BLUE SKY COMPLIANCE. The Company will cooperate with the Initial
Purchasers to qualify the Notes for offer and sale under the securities or Blue
Sky laws of such jurisdictions as the Representatives shall reasonably request
and will continue such qualifications in effect so long as required for the
offering and resale of the Notes; PROVIDED that the Company shall not be
required to (i) qualify as a foreign corporation or other entity or as a dealer
in securities in any such jurisdiction where it would not otherwise be required
to so qualify, (ii) file any general consent to service of process in any such
jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it
is not otherwise so subject.
(f) CLEAR MARKET. During the period from the date hereof through and
including the Closing Date, the Company will not, without the prior written
consent of the Representatives, offer, sell, contract to sell or otherwise
dispose of any debt securities issued by the Company and having a tenor of more
than one year.
(g) USE OF PROCEEDS. The Company will apply the net proceeds from the
sale of the Notes as described in the Offering Memorandum under the heading "Use
of Proceeds".
(h) SUPPLYING INFORMATION. While the Notes remain outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, the Company will, during any period in which the Company is not
subject to and in compliance with Section 13 or 15(d) of the Exchange Act,
furnish to holders of the Notes and prospective purchasers of the Notes
designated by such holders, upon the request of such holders or such prospective
purchasers, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
(i) DTC. The Company will assist the Initial Purchasers in arranging
for the Global Notes to be eligible for clearance and settlement through The
Depository Trust Company ("DTC").
(j) NO RESALES BY THE COMPANY. Until the issuance of the Exchange
Notes, the Company will not, and will not permit any of its affiliates (as
defined in Rule 144 under the Securities Act) to, resell any of the Notes that
have been acquired by any of them, except for Notes purchased by the Company or
any of its affiliates and resold in a transaction registered under the
Securities Act.
(k) NO INTEGRATION. Neither the Company nor any of its affiliates (as
defined in Rule 501(b) of Regulation D) will, directly or through any agent,
sell, offer for sale, solicit offers to buy or otherwise negotiate in respect
of, any security (as defined in the Securities Act), that is or will be
integrated with the sale of the Notes in a manner that would require
registration of the Notes under the Securities Act.
(l) NO GENERAL SOLICITATION OR DIRECTED SELLING EFFORTS. Neither the
Company nor any of its affiliates or any other person acting on their behalf
(other than the Initial Purchasers, as to which no covenant is given) will (i)
solicit offers for, or offer or sell, the Notes by means of any form of general
solicitation or general advertising within the meaning of Rule 502(c) of
Regulation D or in any manner involving a public offering within the meaning of
Section 4(2) of
10
the Securities Act or (ii) engage in any directed selling efforts within the
meaning of Regulation S, and all such persons will comply with the offering
restrictions requirement of Regulation S.
(m) NO STABILIZATION. The Company will not take, directly or
indirectly, any action designed to or that could reasonably be expected to cause
or result in any stabilization or manipulation of the price of the Notes.
(n) FILING OF EXCHANGE ACT DOCUMENTS. The Company will file promptly
all reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act.
(o) REGISTRATION RIGHTS. The Company will use its reasonable best
efforts to cause the exchange offer to be made in the appropriate form to permit
the Notes to be offered in exchange for Exchange Notes in accordance with the
Registration Rights Agreement and to comply with all applicable federal and
state securities laws in connection with the exchange offer.
5. CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS. The obligation of
each Initial Purchaser to purchase Notes on the Closing Date as provided herein
is subject to the performance by the Company of its respective covenants and
other obligations hereunder and to the following additional conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Company contained herein shall be true and correct on the date hereof and
on and as of the Closing Date; and the statements of the Company and its
officers made in any certificates delivered pursuant to this Agreement shall be
true and correct on and as of the Closing Date.
(b) NO DOWNGRADE. Subsequent to the execution and delivery of this
Agreement, (i) no downgrading shall have occurred in the rating accorded the
Notes or any other debt securities or preferred stock issued by the Company by
any "nationally recognized statistical rating organization", as such term is
defined by the Commission for purposes of Rule 436(g)(2) under the Securities
Act; and (ii) no such organization shall have publicly announced that it has
under surveillance or review, or has changed its outlook with respect to, its
rating of the Notes or of any other debt securities or preferred stock issued by
the Company (other than an announcement with positive implications of a possible
upgrading).
(c) NO MATERIAL ADVERSE CHANGE. Subsequent to the execution and
delivery of this Agreement, no event or condition of a type described in Section
3(d) hereof shall have occurred or shall exist, which event or condition is not
described in the Offering Memorandum (excluding any amendment or supplement
thereto or any document filed with the Commission after the date hereof and
incorporated by reference therein) and the effect of which in the judgment of
the Representatives makes it impracticable or inadvisable to proceed with the
offering, sale or delivery of the Notes on the terms and in the manner
contemplated by this Agreement and the Offering Memorandum.
(d) OFFICER'S CERTIFICATE. The Representatives shall have received on
and as of the Closing Date a certificate of an executive officer of the Company
who has specific knowledge of the Company's financial matters and is
satisfactory to the Representatives (i) confirming that such officer has
carefully reviewed the Offering Memorandum and, to the best knowledge of
11
such officer, the representation set forth in Section 3(a) hereof is true and
correct, (ii) confirming that the other representations and warranties of the
Company in this Agreement are true and correct and that the Company has complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date and (iii) to the effect set
forth in paragraphs (a) through (c) above.
(e) COMFORT LETTERS. On the date of this Agreement and on the Closing
Date, Ernst & Young LLP shall have furnished to the Representatives, at the
request of the Company, letters, dated the respective dates of delivery thereof
and addressed to the Initial Purchasers, in form and substance reasonably
satisfactory to the Representatives, containing statements and information of
the type customarily included in accountants' "comfort letters" to Initial
Purchasers with respect to the financial statements and certain financial
information contained or incorporated by reference in the Offering Memorandum;
provided that the letter delivered on the Closing Date shall use a "cut-off"
date no more than three business days prior to the Closing Date.
(f) OPINION OF COUNSEL FOR THE COMPANY. ▇▇▇▇ ▇▇▇▇▇ LLP, counsel for
the Company, shall have furnished to the Representatives, at the request of the
Company, their written opinion, dated the Closing Date and addressed to the
Initial Purchasers, in form and substance reasonably satisfactory to the
Representatives.
(g) OPINION OF COUNSEL FOR THE INITIAL PURCHASERS. The Representative
shall have received on and as of the Closing Date an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇, counsel for the Initial Purchasers, with respect to such matters as
the Representatives may reasonably request, and such counsel shall have received
such documents and information as they may reasonably request to enable them to
pass upon such matters.
(h) NO LEGAL IMPEDIMENT TO ISSUANCE. No action shall have been taken
and no statute, rule, regulation or order shall have been enacted, adopted or
issued by any federal, state or foreign governmental or regulatory authority
that would, as of the Closing Date, prevent the issuance or sale of the Notes
and no injunction or order of any federal, state or foreign court shall have
been issued that would, as of the Closing Date, prevent the issuance or sale of
the Notes.
(i) GOOD STANDING. The Representatives shall have received on and as
of the Closing Date satisfactory evidence of the good standing of the Company
and its significant subsidiaries in their respective jurisdictions of
organization and their good standing in such other jurisdictions as the
Representative may reasonably request, in each case in writing or any standard
form of telecommunication, from the appropriate governmental authorities of such
jurisdictions.
(j) REGISTRATION RIGHTS AGREEMENT. The Initial Purchasers shall have
received a counterpart of the Registration Rights Agreement that shall have been
executed and delivered by a duly authorized officer of the Company.
(k) DTC. The Notes shall be eligible for clearance and settlement
through DTC, Clearstream Banking and the Euroclear System.
(l) ADDITIONAL DOCUMENTS. On or prior to the Closing Date, the Company
shall have furnished to the Representatives such further certificates and
documents as the Representatives may reasonably request.
12
All opinions, letters, certificates and evidence mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Initial Purchasers.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION OF THE INITIAL PURCHASERS. The Company agrees to
indemnify and hold harmless each Initial Purchaser, its affiliates, directors
and officers and each person, if any, who controls such Initial Purchaser within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities
(including, without limitation, legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted, as such
fees and expenses are incurred), joint or several, that arise out of, or are
based upon, any untrue statement or alleged untrue statement of a material fact
contained in the Preliminary Offering Memorandum or the Offering Memorandum (or
any amendment or supplement thereto), or any omission or alleged omission to
state therein a material fact necessary in order 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 arise out of, or
are based upon, any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with any information relating
to any Initial Purchaser furnished to the Company in writing by such Initial
Purchaser through the Representatives expressly for use therein; PROVIDED, that
with respect to any such untrue statement in or omission from the Preliminary
Offering Memorandum, the indemnity agreement contained in this paragraph (a)
shall not inure to the benefit of any Initial Purchaser to the extent that the
sale to the person asserting any such loss, claim, damage or liability was an
initial resale by such Initial Purchaser and any such loss, claim, damage or
liability of or with respect to such Initial Purchaser results from the fact
that both (i) a copy of the Offering Memorandum (excluding any documents
incorporated by reference therein) was not sent or given to such person at or
prior to the written confirmation of the sale of such Notes to such person and
(ii) the untrue statement in or omission from such Preliminary Offering
Memorandum was corrected in the Offering Memorandum unless, in either case, such
failure to deliver the Offering Memorandum was a result of non-compliance by the
Company with the provisions of Section 4 hereof.
(b) INDEMNIFICATION OF THE COMPANY. Each Initial Purchaser agrees,
severally and not jointly, to indemnify and hold harmless the Company and each
person, if any, who controls 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
indemnity set forth in paragraph (a) above, but only with respect to any losses,
claims, damages or liabilities that arise out of, or are based upon, any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with any information relating to such Initial Purchaser
furnished to the Company in writing by such Initial Purchaser through the
Representatives expressly for use in the Preliminary Offering Memorandum and the
Offering Memorandum (or any amendment or supplement thereto), it being
understood and agreed that the only such information consists of the following
information in the Preliminary Offering Memorandum and the Offering Memorandum:
(i) the first sentence of the third paragraph, (ii) the fourth sentence of the
tenth paragraph and (iii) the first sentence of the eleventh paragraph under the
heading "Plan of Distribution".
13
(c) NOTICE AND PROCEDURES. If any suit, action, proceeding (including
any governmental or regulatory investigation), claim or demand shall be brought
or asserted against any person in respect of which indemnification may be sought
pursuant to either paragraph (a) or (b) above, such person (the "Indemnified
Person") shall promptly notify the person against whom such indemnification may
be sought (the "Indemnifying Person") in writing; PROVIDED that the failure to
notify the Indemnifying Person shall not relieve it from any liability that it
may have under this Section 6 except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or defenses) by such
failure; and PROVIDED, FURTHER, that the failure to notify the Indemnifying
Person shall not relieve it from any liability that it may have to an
Indemnified Person otherwise than under this Section 6. If any such proceeding
shall be brought or asserted against an Indemnified Person and it shall have
notified the Indemnifying Person thereof, the Indemnifying Person shall retain
counsel reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others entitled to indemnification pursuant to this
Section 6 that the Indemnifying Person may designate in such proceeding and
shall pay the fees and expenses of such counsel related to such proceeding, as
incurred. In any such proceeding, any Indemnified Person 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 Person unless (i) the Indemnifying Person and
the Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person
shall have reasonably concluded that there may be legal defenses available to it
that are different from or in addition to those available to the Indemnifying
Person; or (iv) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood and agreed that the Indemnifying Person shall not, in connection with
any proceeding or related proceeding 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 Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for any Initial
Purchaser, its affiliates, directors and officers and any control persons of
such Initial Purchaser shall be designated in writing by the Representatives and
any such separate firm for the Company and any control persons of the Company
shall be designated in writing by the Company. The Indemnifying Person 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 Person agrees to indemnify each Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested that an Indemnifying Person reimburse the
Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by the Indemnifying Person of such
request and (ii) the Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnification could have been sought hereunder by such Indemnified
Person, unless such settlement (x) includes an unconditional release of such
Indemnified Person, in form and
14
substance reasonably satisfactory to such Indemnified Person, from all liability
on claims that are the subject matter of such proceeding and (y) does not
include any statement as to or any admission of fault, culpability or a failure
to act by or on behalf of any Indemnified Person.
(d) CONTRIBUTION. If the indemnification provided for in paragraphs
(a) and (b) above is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person 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 Company on the one hand and the Initial Purchasers on
the other from the offering of the Notes or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
but also the relative fault of the Company on the one hand and the Initial
Purchasers on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Initial Purchasers on the other shall be deemed to be in
the same respective proportions as the net proceeds (before deducting expenses)
received by the Company from the sale of the Notes and the total discounts and
commissions received by the Initial Purchasers in connection therewith, as
provided in this Agreement, bear to the aggregate offering price of the Notes.
The relative fault of the Company on the one hand and the Initial Purchasers on
the other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Initial Purchasers and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
(e) LIMITATION ON LIABILITY. The Company and the Initial Purchasers
agree that it would not be just and equitable if contribution pursuant to this
Section 6 were determined by PRO RATA allocation (even if the Initial Purchasers
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred
to in paragraph (d) above. The amount paid or payable by an Indemnified Person
as a result of the losses, claims, damages and liabilities referred to in
paragraph (d) above shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Person in
connection with any such action or claim. Notwithstanding the provisions of this
Section 6, in no event shall an Initial Purchaser be required to contribute any
amount in excess of the amount by which the total discounts and commissions
received by such Initial Purchaser with respect to the offering of the Notes
exceeds the amount of any damages that such Initial Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Initial Purchasers' obligations to contribute pursuant to
this Section 6 are several in proportion to their respective purchase
obligations hereunder and not joint.
15
(f) NON-EXCLUSIVE REMEDIES. The remedies provided for in this Section
6 are not exclusive and shall not limit any rights or remedies that may
otherwise be available to any Indemnified Person at law or in equity.
7. TERMINATION. This Agreement may be terminated in the absolute
discretion of the Representatives, by notice 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 the New
York Stock Exchange or the over-the-counter market; (ii) trading of any
securities issued or guaranteed by the Company shall have been suspended on any
exchange or in any over-the-counter market; (iii) there shall have occurred a
material disruption of securities settlement or clearance services; (iv) a
general moratorium on commercial banking activities shall have been declared by
federal or New York State authorities; or (v) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis, either within or outside the United States, that, in the
judgment of the Representatives, is material and adverse and makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of
the Notes on the terms and in the manner contemplated by this Agreement and the
Offering Memorandum.
8. DEFAULTING INITIAL PURCHASER. (a) If, on the Closing Date, any
Initial Purchaser defaults on its obligation to purchase the Notes that it has
agreed to purchase hereunder, the non-defaulting Initial Purchasers may in their
discretion arrange for the purchase of such Notes by other persons satisfactory
to the Company on the terms contained in this Agreement. If, within 36 hours
after any such default by any Initial Purchaser, the non-defaulting Initial
Purchasers do not arrange for the purchase of such Notes, then the Company shall
be entitled to a further period of 36 hours within which to procure other
persons satisfactory to the non-defaulting Initial Purchasers to purchase such
Notes on such terms. If other persons become obligated or agree to purchase the
Notes of a defaulting Initial Purchaser, either the non-defaulting Initial
Purchasers or the Company may postpone the Closing Date for up to five full
business days in order to effect any changes that in the opinion of counsel for
the Company or counsel for the Initial Purchasers may be necessary in the
Offering Memorandum or in any other document or arrangement, and the Company
agrees to promptly prepare any amendment or supplement to the Offering
Memorandum that effects any such changes. As used in this Agreement, the term
"Initial Purchaser" includes, for all purposes of this Agreement unless the
context otherwise requires, any person not listed in Schedule 1 hereto that,
pursuant to this Section 8, purchases Notes that a defaulting Initial Purchaser
agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of
the Notes of a defaulting Initial Purchaser or Initial Purchasers by the
non-defaulting Initial Purchasers and the Company as provided in paragraph (a)
above, the aggregate principal amount of such Notes that remains unpurchased
does not exceed one-eleventh of the aggregate principal amount of all the Notes,
then the Company shall have the right to require each non-defaulting Initial
Purchaser to purchase the principal amount of Notes that such Initial Purchaser
agreed to purchase hereunder plus such Initial Purchaser's PRO RATA share (based
on the principal amount of Notes that such Initial Purchaser agreed to purchase
hereunder) of the Notes of such defaulting Initial Purchaser or Initial
Purchasers for which such arrangements have not been made.
16
(c) If, after giving effect to any arrangements for the purchase of
the Notes of a defaulting Initial Purchaser or Initial Purchasers by the
non-defaulting Initial Purchasers and the Company as provided in paragraph (a)
above, the aggregate principal amount of such Notes that remains unpurchased
exceeds one-eleventh of the aggregate principal amount of all the Notes, or if
the Company shall not exercise the right described in paragraph (b) above, then
this Agreement shall terminate without liability on the part of the
non-defaulting Initial Purchasers. Any termination of this Agreement pursuant to
this Section 8 shall be without liability on the part of the Company, except
that the Company will continue to be liable for the payment of expenses as set
forth in Section 9 hereof and except that the provisions of Section 6 hereof
shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Initial
Purchaser of any liability it may have to the Company or any non-defaulting
Initial Purchaser for damages caused by its default.
9. PAYMENT OF EXPENSES. (a) Whether or not the transactions
contemplated by this Agreement are consummated or this Agreement is terminated,
the Company agrees to pay or cause to be paid all costs and expenses incident to
the performance of their respective obligations hereunder, including without
limitation, (i) the costs incident to the authorization, issuance, sale,
preparation and delivery of the Notes and any taxes payable in that connection;
(ii) the costs incident to the preparation and printing of the Preliminary
Offering Memorandum and the Offering Memorandum (including any amendment or
supplement thereto) and the distribution thereof; (iii) the costs of reproducing
and distributing each of the documents relating to this offering; (iv) the fees
and expenses of the Company's counsel and independent accountants; (v) the fees
and expenses incurred in connection with the registration or qualification and
determination of eligibility for investment of the Notes under the laws of such
jurisdictions as the Representatives may designate and the preparation, printing
and distribution of a Blue Sky Memorandum (including the related fees and
expenses of counsel for the Initial Purchasers); (vi) any fees charged by rating
agencies for rating the Notes; (vii) the fees and expenses of the Trustee and
any paying agent (including related fees and expenses of any counsel to such
parties); (viii) all expenses and application fees incurred in connection with
the approval of the Notes for book-entry transfer by DTC; and (ix) all expenses
incurred by the Company in connection with any "road show" presentation to
potential investors.
(b) If (i) this Agreement is terminated pursuant to Section 7, (ii)
the Company for any reason fails to tender the Notes for delivery to the Initial
Purchasers or (iii) the Initial Purchasers decline to purchase the Notes for any
reason permitted under this Agreement, the Company agrees to reimburse the
Initial Purchasers for all out-of-pocket costs and expenses (including the fees
and expenses of their counsel) reasonably incurred by the Initial Purchasers in
connection with this Agreement and the offering contemplated hereby. Otherwise,
the Initial Purchasers shall pay their own expenses, including the fees and
expenses of their counsel.
10. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and any controlling persons referred to herein, and the
affiliates, officers and directors of each Initial Purchaser referred to in
Section 6 hereof. Nothing in this Agreement is intended or shall be construed to
give any other person any legal or equitable right, remedy or claim under or in
respect of this
17
Agreement or any provision contained herein. No purchaser of Notes from any
Initial Purchaser shall be deemed to be a successor merely by reason of such
purchase.
11. SURVIVAL. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company and the Initial
Purchasers contained in this Agreement or made by or on behalf of the Company or
the Initial Purchasers pursuant to this Agreement or any certificate delivered
pursuant hereto shall survive the delivery of and payment for the Notes and
shall remain in full force and effect, regardless of any termination of this
Agreement or any investigation made by or on behalf of the Company or the
Initial Purchasers.
12. CERTAIN DEFINED TERMS. For purposes of this Agreement, (a) except
where otherwise expressly provided, the term "affiliate" has the meaning set
forth in Rule 405 under the Securities Act; (b) the term "business day" means
any day other than a day on which banks are permitted or required to be closed
in New York City; and (c) the term "subsidiary" has the meaning set forth in
Rule 405 under the Securities Act.
13. MISCELLANEOUS. (a) AUTHORITY OF THE REPRESENTATIVES. Any action by
the Initial Purchasers hereunder may be taken by the Representatives on behalf
of the Initial Purchasers, and any such action taken by the Representatives
shall be binding upon the Initial Purchasers.
(b) NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed or transmitted
and confirmed by any standard form of telecommunication. Notices to the Initial
Purchasers shall be given to the Representatives c/o ▇.▇. ▇▇▇▇▇▇ Securities
Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (fax: (▇▇▇) ▇▇▇-▇▇▇▇);
Attention: Transaction Execution Group. Notices to the Company shall be given to
them at Equitable Resources, Inc., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (fax: ▇▇▇-▇▇▇-▇▇▇▇); Attention: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇▇, Senior
Vice President, General Counsel and Corporate Secretary.
(c) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
(d) ENTIRE AGREEMENT AND COUNTERPARTS. This Agreement constitutes the
entire agreement of the parties to this Agreement and supersedes all prior
written or oral and all contemporaneous oral agreements, understandings and
negotiations with respect to the subject matter hereof. This Agreement may be
signed in counterparts (which may include counterparts delivered by any standard
form of telecommunication), each of which shall be an original and all of which
together shall constitute one and the same instrument.
(e) AMENDMENTS OR WAIVERS. No amendment or waiver of any provision of
this Agreement, nor any consent or approval to any departure therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
parties hereto.
(f) HEADINGS. The headings herein are included for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
(g) PARTIAL UNENFORCEABILITY. The invalidity or unenforceability of
any Section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any
18
other Section, paragraph or provision hereof. If any Section, paragraph or
provision of this Agreement is for any reason determined to be invalid or
unenforceable, there shall be deemed to be made such minor changes (and only
such minor changes) as are necessary to make it valid and enforceable.
19
If the foregoing is in accordance with your understanding, please
indicate your acceptance of this Agreement by signing in the space provided
below.
Very truly yours,
EQUITABLE RESOURCES, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice-President &
Chief Financial Officer
Accepted: November 7, 2002
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
For themselves and on behalf of the
several Initial Purchasers listed
in Schedule 1 hereto.
By: ▇.▇. ▇▇▇▇▇▇ Securities Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice-President
20
SCHEDULE 1
Initial Purchaser Principal Amount
----------------- ----------------
▇.▇. ▇▇▇▇▇▇ Securities Inc. $ 65,000,000
Banc of America Securities LLC $ 65,000,000
Banc One Capital Markets, Inc. $ 20,000,000
PNC Capital Markets, Inc. $ 20,000,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. $ 20,000,000
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Corp. $ 10,000,000
----------------
Total $ 200,000,000
ANNEX A
RESTRICTIONS ON OFFERS AND SALES OUTSIDE THE UNITED STATES
In connection with offers and sales of Notes outside the United
States:
(a) Each Initial Purchaser acknowledges that the Notes have not been
registered under the Securities Act and may not be offered or sold within the
United States or to, or for the account or benefit of, U.S. persons except
pursuant to an exemption from, or in transactions not subject to, the
registration requirements of the Securities Act.
(b) Each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that:
(i) Such Initial Purchaser has offered and sold the Notes, and
will offer and sell the Notes, (A) as part of their distribution at
any time and (B) otherwise until 40 days after the later of the
commencement of the offering of the Notes and the Closing Date, only
in accordance with Regulation S under the Securities Act ("Regulation
S") or Rule 144A or any other available exemption from registration
under the Securities Act.
(ii) None of such Initial Purchaser or any of its affiliates or
any other person acting on its or their behalf has engaged or will
engage in any directed selling efforts with respect to the Notes, and
all such persons have complied and will comply with the offering
restrictions requirement of Regulation S.
(iii) At or prior to the confirmation of sale of any Notes sold
in reliance on Regulation S, such Initial Purchaser will have sent to
each distributor, dealer or other person receiving a selling
concession, fee or other remuneration that purchase Notes from it
during the distribution compliance period a confirmation or notice to
substantially the following effect:
"The Notes covered hereby have not been registered
under the U.S. Securities Act of 1933, as amended
(the "Securities Act"), and may not be offered or
sold within the United States or to, or for the
account or benefit of, U.S. persons (i) as part of
their distribution at any time or (ii) otherwise
until 40 days after the later of the commencement
of the offering of the Notes and the date of
original issuance of the Notes, except in
accordance with Regulation S or Rule 144A or any
other available exemption from registration under
the Securities Act. Terms used above have the
meanings given to them by Regulation S."
(iv) Such Initial Purchaser has not and will not enter into any
contractual arrangement with any distributor with respect to the
distribution of the Notes, except with its affiliates or with the
prior written consent of the Company.
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Terms used in paragraph (a) and this paragraph (b) and not otherwise defined in
this Agreement have the meanings given to them by Regulation S.
(c) Each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that:
(i) it has not offered or sold and prior to the date six
months after the Closing Date will not offer or sell any Notes to
persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing
of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and
will not result in an offer to the public in the United Kingdom within
the meaning of the United Kingdom Public Offers of Securities
Regulations 1995 (as amended);
(ii) it has only communicated or caused to be communicated and
will only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of
Section 21 of the United Kingdom Financial Services and Markets Act
2000 (the "FSMA")) received by it in connection with the issue or sale
of any Notes in circumstances in which Section 21(1) of the FSMA does
not apply to the Company; and
(iii) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in relation
to the Notes in, from or otherwise involving the United Kingdom.
(d) Each Initial Purchaser acknowledges that no action has been or
will be taken by the Company that would permit a public offering of the Notes,
or possession or distribution of the Preliminary Offering Memorandum, the
Offering Memorandum or any other offering or publicity material relating to the
Notes, in any country or jurisdiction where action for that purpose is required.
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EXHIBIT A
Form of Registration Rights Agreement
