EXHIBIT 1
TO REGISTRATION STATEMENT
CENTURYTEL, INC.
$____________ ___% Senior Notes, Series ______, due ______
$____________ ___% Senior Notes, Series ______, due ______
UNDERWRITING AGREEMENT
___________ ___, 2000
[name]
As Representatives of
the several Underwriters
[address]
Dear Ladies and Gentlemen:
CenturyTel, Inc., a Louisiana corporation (the "Company"), proposes to
issue and sell an aggregate of $______________ principal amount of the
Company's _____% Senior Notes, Series _____, due _____ (the "Series _____
Notes") and $____________ principal amount of the Company's _____% Senior
Notes, Series _____, due _____ (the "Series _____ Notes" and, together with
the Series _____ Notes, the "Securities") to be issued pursuant to an
Indenture dated as of March 31, 1994 (the "Indenture"), between the Company
and Regions Bank (successor to First American Bank & Trust of Louisiana and
Regions Bank of Louisiana), as Trustee (the "Trustee"). The Securities
will be sold to you and to the other underwriters named in Schedule I
(collectively, the "Underwriters") for whom you are acting as
representatives (the "Representatives").
The purchase price for the Securities to be paid by the several
Underwriters shall be agreed upon by the Company and the Representatives,
acting on behalf of the several Underwriters, and such agreement shall be
set forth in a separate written instrument substantially in the form of
Exhibit A hereto (the "Price Determination Agreement"). The Price
Determination Agreement may take the form of an exchange of any standard
form of written telecommunication among the Company and the Representatives
and shall specify such applicable information as is indicated in Exhibit A
hereto. The offering of the Securities will be governed by this Agreement,
as supplemented by the Price Determination Agreement. From and after the
date of the execution and delivery of the Price Determination Agreement,
this Agreement shall be deemed to incorporate, and, unless the context
otherwise indicates, all references contained herein to "this Agreement"
and to the phrase "herein" shall be deemed to include the Price
Determination Agreement.
The Company confirms as follows its agreements with the
Representatives and the several other Underwriters.
1. AGREEMENT TO SELL AND PURCHASE.
(a) On the basis of the representations, warranties and
agreements of the parties herein contained and subject to all the terms and
conditions of this Agreement, the Company agrees to sell to each
Underwriter named below, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, the principal amount of the
Securities set forth opposite the name of such Underwriter in Schedule I,
plus such additional principal amount of Securities which such Underwriter
may become obligated to purchase pursuant to Section 8 hereof, all at the
purchase price plus accrued interest, if any, from _________ __, 2000, to
the Closing Date (as hereinafter defined), to be agreed upon by the
Representatives and the Company in accordance with Section 1(b) and as set
forth in the Price Determination Agreement.
(b) The purchase price for the Securities to be paid by the
several Underwriters shall be agreed upon and set forth in the Price
Determination Agreement, which shall be dated the Execution Date, and a
Final Prospectus (as hereinafter defined) containing such price information
shall be filed pursuant to 424(b) under the Securities Act of 1933, as
amended (the "Act").
2. DELIVERY AND PAYMENT. Delivery of the Securities shall be made
to the Representatives for the accounts of the Underwriters against payment
of the purchase price by wire transfer in same day funds to the Company or
its order at the office of _______________ or at such other location as the
parties may agree. Such payment shall be made at 10:00 a.m., New York City
time, on the third business day following the date of this Agreement or at
such time on such other date, not later than five business days after the
date of this Agreement, as may be agreed upon by the Company and the
Representatives (such date is hereinafter referred to as the "Closing
Date").
Certificates evidencing the Securities shall be in temporary or
definitive form and shall be registered in such names and in such
authorized denominations as the Representatives shall request by written
notice to the Company at least two business days prior to the Closing Date.
For the purpose of expediting the checking and packaging of certificates
for the Securities, the Company agrees to make such certificates available
for inspection at least 24 hours prior to the Closing Date.
The cost of original issue tax stamps, if any, in connection with the
issuance and sale of the Securities by the Company to the respective
Underwriters shall be borne by the Company. The Company will pay and save
each Underwriter and any subsequent holder of the Securities harmless from
any and all liabilities with respect to or resulting from any failure or
delay in paying federal and state stamp and other issuance taxes, if any,
which may be payable or determined to be payable in connection with the
original issuance or sale to such Underwriter of the Securities.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to and covenants with each Underwriter that:
(a) The Company meets the requirements for use of Form S-3. A
registration statement (Registration No. 333-_________) on Form S-3
relating to the registration of $2 billion of Senior Debt Securities,
Preferred Stock, Common Stock and Warrants (in each case as described in
the Basic Prospectus hereinafter referred to), and the offering thereof
from time to time in accordance with Rule 415 under the Act, including a
Basic Prospectus (as hereinafter defined) and such amendments to such
registration statement as may have been required to the date of this
Agreement, has been (i) prepared by the Company under the provisions of the
Act, and the rules and regulations thereunder (collectively referred to as
the "Rules and Regulations") of the Securities and Exchange Commission (the
"Commission"); (ii) filed with the Commission; and (iii) declared effective
by the Commission. Copies of such registration statement and amendments,
if any, and of any Preliminary Prospectus (as hereinafter defined) used by
the Company have been delivered to the Representatives. The offering of
the Securities is a Delayed Offering (as hereinafter defined) and, although
the Basic Prospectus may not include all the information with respect to
the Securities and the offering thereof required by the Act and the Rules
and Regulations to be included in the Final Prospectus, such Basic
Prospectus includes all such information required by the Act and the Rules
and Regulations to be included therein as of the Effective Date (as
hereinafter defined). The Company will file the Final Prospectus in
accordance with Rule 424(b) of the Rules and Regulations. As filed, the
Final Prospectus shall include all required information with respect to the
Securities and the offering thereof and, except to the extent the
Representatives shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution
Date or, to the extent not completed at the Execution Date, shall contain
such specific additional information and other changes (beyond that
contained in such Basic Prospectus and any Preliminary Prospectus) as the
Company has advised you, prior to the Execution Date.
The term "Registration Statement" means such registration
statement as amended or supplemented to the date hereof, including
incorporated documents, financial statements and all exhibits, each as
amended, and, in the event any post-effective amendment to such
registration statement becomes effective prior to the Closing Date, shall
also mean such registration statement as so amended. The term "Effective
Date" means the later of the date the Registration Statement initially
became effective, the date that any post-effective amendment or amendments
thereto became or become effective or the date of the filing of the
Company's most recent Annual Report on Form 10-K. The term "Execution
Date" means the date that this Agreement is executed and delivered by the
parties hereto. The term "Basic Prospectus" means the prospectus contained
in and forming a part of the Registration Statement as of the Effective
Date, including incorporated documents or documents deemed to be
incorporated therein. In the event that (i) the Basic Prospectus shall
have been amended, revised or supplemented (but excluding supplements to
the Basic Prospectus relating solely to Preferred Stock, Common Stock,
Warrants or Senior Debt Securities other than the Securities) prior to the
Effective Date (including without limitation by the Preliminary Prospectus)
or (ii) the Company shall have filed documents pursuant to Section 13, 14
or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), after the time the Registration Statement became effective and prior
to the Effective Date (but excluding documents incorporated therein by
reference relating solely to Preferred Stock, Common Stock, Warrants or
Senior Debt Securities other than the Securities) which are deemed to be
incorporated by reference in the Basic Prospectus pursuant to Item 12 of
Form S-3, the term "Basic Prospectus" as used herein shall also mean such
prospectus as so amended, revised or supplemented and reflecting such
incorporation by reference. The term "Preliminary Prospectus" means any
preliminary prospectus (or any supplement thereto) which describes the
Securities and the offering thereof and is used prior to the filing of the
Final Prospectus. The term "Final Prospectus" means the prospectus
supplement relating to the Securities as first filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations after the Execution
Date, together with the Basic Prospectus. The term "Delayed Offering"
means an offering of securities pursuant to Rule 415 under the Rules and
Regulations which does not commence promptly after the effective date of a
registration statement.
(b) On the Effective Date, the Registration Statement did and
when the Final Prospectus is first filed with the Commission pursuant to
Rule 424(b), the Final Prospectus (and any supplement thereto), including
the financial statements included or incorporated by reference in the Final
Prospectus, will comply in all material respects with the applicable
provisions of the Act, the Rules and Regulations, the Exchange Act, the
rules and regulations thereunder (the "Exchange Act Rules and
Regulations"), the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations thereunder (the "Trust
Indenture Act Rules and Regulations") and will contain all information
required to be included therein in accordance with the Act, the Rules and
Regulations, the Exchange Act and the Exchange Act Rules and Regulations.
On the Effective Date, the Registration Statement did not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading. At the date the Final Prospectus (together with any
supplement thereto) is first filed with the Commission pursuant to Rule
424(b) and at the Closing Date, the Final Prospectus did not or 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. The foregoing
representations and warranties in this Section 3(b) do not apply to any
statements or omissions made in reliance on and in conformity with
information furnished in writing to the Company by the Representatives
specifically for inclusion in the Registration Statement or Final
Prospectus (or any supplement thereto). On the Effective Date, the date
the Final Prospectus is first filed with the Commission pursuant to Rule
424(b), and at all subsequent times to and including the Closing Date, the
Indenture did or will comply with all applicable provisions of the Trust
Indenture Act and the Trust Indenture Act Rules and Regulations.
(c) The documents which are incorporated by reference in the
Basic Prospectus, any Preliminary Prospectus and the Final Prospectus or
from which information is so incorporated by reference, when they became
effective or were filed with the Commission, as the case may be, complied
in all material respects with the requirements of the Act, the Rules and
Regulations, the Exchange Act or the Exchange Act Rules and Regulations, as
applicable; and any documents so filed and incorporated by reference
subsequent to the Effective Date shall, when they are filed with the
Commission, conform in all material respects with the requirements of the
Act, the Rules and Regulations, the Exchange Act or the Exchange Act Rules
and Regulations, as applicable.
(d) Each of the Company and each of its subsidiaries listed on
Schedule II hereto (the "Subsidiaries") is, and at the Closing Date will
be, a corporation or limited liability company duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization. Each of the Company and each of the Subsidiaries has, and at
the Closing Date will have, full power and authority to conduct all the
activities conducted by it, to own or lease all the assets owned or leased
by it and to conduct its business as described in the Registration
Statement and the Final Prospectus. Each of the Company and each of the
Subsidiaries is, and at the Closing Date will be, duly licensed or
qualified to do business and in good standing as a foreign corporation or
limited liability company in all jurisdictions in which the nature of the
activities conducted by it or the character of the assets owned or leased
by it makes such licensing or qualification necessary except where the
failure to be so qualified or licensed would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole. For purposes
of this Agreement, (i) "subsidiaries" shall mean (a) the Company's directly
and indirectly majority-owned corporate subsidiaries, (b) the Company's
directly and indirectly majority-owned limited liability companies and (c)
the partnerships, joint ventures and other entities of which the Company or
any subsidiary is the majority owner and managing general partner and (ii)
the phrase "Company and its subsidiaries, taken as a whole" shall be
construed to include minority-owned partnerships in which a corporate
subsidiary of the Company is a limited partner, but only to the extent of
the Company's equity interests in such partnerships. Complete and correct
copies of the certificate of incorporation, by-laws or other organizational
documents of the Company and each of the Subsidiaries and all amendments
thereto have been made available to the Representatives, and no changes
therein will be made subsequent to the Execution Date and prior to the
Closing Date.
(e) The Securities have been duly and validly authorized and,
when authenticated by the Trustee and issued, delivered and sold in
accordance with this Agreement and the Indenture, will have been duly and
validly executed, authenticated, issued and delivered and will constitute
valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms and entitled to the
benefits provided by the Indenture except (i) that such enforcement may be
subject to bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws, now or hereafter in effect, relating to
creditors' rights generally and (ii) that the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
(f) The description of the Securities in the Registration
Statement and the Final Prospectus is, and at the Closing Date will be,
complete and accurate in all material respects and, insofar as such
description contains statements constituting a summary of the legal matters
or documents referred to therein, such description fairly summarizes the
information referred to therein.
(g) The financial statements and schedules included or
incorporated by reference in the Registration Statement or the Final
Prospectus present fairly the consolidated financial condition of the
Company as of the respective dates thereof and the consolidated results of
operations and cash flows of the Company for the respective periods covered
thereby, all in conformity with generally accepted accounting principles
applied on a consistent basis throughout the entire period involved, except
as otherwise disclosed in the Registration Statement or the Final
Prospectus. The selected consolidated financial data included in the
Registration Statement or the Final Prospectus present fairly the
information shown therein and have been compiled on a basis consistent with
that of the audited consolidated financial statements of the Company
included in the Registration Statement or the Final Prospectus. [Any pro
forma financial data included or incorporated by reference in the
Registration Statement or Final Prospectus comply in all material respects
with Article XI of Regulation S-X under the Act.] No other financial
statements or schedules of the Company are required by the Act, the Rules
and Regulations or the Exchange Act to be included in or incorporated by
reference into the Registration Statement or the Final Prospectus. KPMG
LLP ("KPMG"), who have reported on certain financial statements and
schedules of the Company, are independent accountants with respect to the
Company as required by the Act and the Rules and Regulations.
(h) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Final Prospectus and prior
to the Closing Date, except as set forth in or contemplated by the
Registration Statement and the Final Prospectus, (i) there has not been and
will not have been any material change in the capitalization of the
Company, (ii) there has not been and will not have been any material
adverse change in the business, properties, business prospects, condition
(financial or otherwise) or results of operations of the Company and its
subsidiaries, taken as a whole, arising for any reason whatsoever, (iii)
except in the ordinary course of business, neither the Company nor any of
the Subsidiaries has incurred nor will it voluntarily incur any liabilities
or obligations, direct or contingent, that are material to the Company and
its subsidiaries, taken as a whole, and (iv) the Company has not and will
not have paid or declared any dividends or other distributions of any kind
on any class of its capital stock except cash dividends paid in the
ordinary course of business and consistent with past practice.
(i) The Company is not an "investment company" or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an "investment
company," as such terms are defined in the Investment Company Act of 1940,
as amended.
(j) Except as set forth in the Registration Statement and the
Final Prospectus, there are no actions, suits or proceedings pending or, to
the best of the Company's knowledge, threatened against or affecting the
Company or any of its subsidiaries or any of their respective officers in
their capacity as such, before or by any federal or state court,
commission, regulatory body, administrative agency or other governmental
body, domestic or foreign, that is likely to materially and adversely
affect the business, properties, business prospects, condition (financial
or otherwise) or results of operations of the Company and its subsidiaries,
taken as a whole. All actions, suits or proceedings now pending against
the Company or any of its subsidiaries, or any of their respective officers
in their capacities as such, before any Federal or state court, commission,
regulatory body, administrative agency or other governmental body, domestic
or foreign, if decided or resolved in a manner unfavorable to the Company
or any of its subsidiaries, would not be likely to, singly or in the
aggregate, materially and adversely affect the business, properties,
condition (financial or otherwise) or results of operations of the Company
and its subsidiaries, taken as a whole.
(k) The Company and each of the Subsidiaries has, and at the
Closing Date, will have (i) such franchises, certificates, authorities or
permits issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct the business now operated by them,
other than those the absence of which would not be likely to have a
materially adverse effect on the business, properties, business prospects,
condition (financial or otherwise) or results of operations of the Company
and its subsidiaries, taken as a whole, and neither the Company nor any of
the Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such franchise, certificate, authority or
permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would be likely to materially and adversely
affect the business, properties, business prospects, condition (financial
or otherwise) or results of operations of the Company and its subsidiaries,
taken as a whole, (ii) complied in all material respects with all laws,
statutes, ordinances, rules, regulations, orders or decrees of any court,
governmental body or regulatory authority or administrative agency having
jurisdiction over the Company or any Subsidiary or any of the property or
assets of the Company or any Subsidiary (including, without limitation, any
such laws, statutes, ordinances, rules regulations, orders or decrees with
respect to environmental protection or the release, handling, treatment,
storage or disposal of hazardous substances or toxic wastes), the failure
to comply with which would be likely to materially adversely affect the
business, properties, business prospects, condition (financial or
otherwise) or results of operations of the Company and its subsidiaries,
taken as a whole, and (iii) performed in all material respects all of its
obligations required to be performed by it under any material contract or
other instrument to which it is a party or by which its property is bound
or affected, and is not, and at the Closing Date, will not be, in default
under any such contract or instrument the effect of which would be likely
to materially adversely affect the business, properties, business
prospects, condition (financial or otherwise) or results of operations of
the Company and its subsidiaries, taken as a whole. To the best knowledge
of the Company, no other party under any material contract or other
instrument to which it or any Subsidiary is a party is in default in any
respect thereunder, except for any such defaults (alone or collectively)
that would not be likely to have a material adverse effect on the Company
and its subsidiaries, taken as a whole; PROVIDED that it is understood and
agreed that neither the Company nor any Subsidiary has undertaken any
special investigation to determine compliance by such other parties under
any such contract or other instrument. The Company is not, and at the
Closing Date, will not be, in violation of any provision of its articles of
incorporation or by-laws or in default in any material respect under any
agreement or instrument evidencing indebtedness for borrowed money. The
Subsidiaries are not, and at the Closing Date, will not be, in violation of
any material provision of their respective articles of incorporation or by-
laws (or comparable organizational documents) or in default under any
agreement or instrument evidencing indebtedness for borrowed money as a
result of the failure to make one or more payments in excess of $5 million
in the aggregate that are due and owed thereunder.
(l) No consent, approval, authorization or order of, or any
filing, registration, qualification or declaration with, any court or
governmental agency or body is required for (i) the execution, delivery or
performance of this Agreement, the Securities or the Indenture by the
Company, (ii) the authorization, offer, issuance, transfer, sale or
delivery of the Securities by the Company in accordance herewith or (iii)
the consummation by the Company of the transactions on its part
contemplated herein and by the Indenture, except such as may have been
obtained under the Act, the Rules and Regulations, the Trust Indenture Act
or the Trust Indenture Act Rules and Regulations and such as may be
required under foreign or state securities or Blue Sky laws or the by-laws
and rules of the National Association of Securities Dealers, Inc. (the
"NASD") in connection with the purchase and distribution of the Securities
by the Underwriters.
(m) The Company has full corporate power and authority to enter
into this Agreement. This Agreement has been duly authorized, executed and
delivered by the Company and, when executed and delivered by the
Representatives, constitutes a valid and binding agreement of the Company
and is enforceable against the Company in accordance with the terms hereof,
except (i) that such enforcement may be subject to bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws,
now or hereafter in effect, relating to creditors' rights generally, (ii)
that the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought and (iii)
rights to indemnity and contribution hereunder may be limited by federal or
state laws relating to securities or the policies underlying such laws.
The Indenture has been duly authorized and, constitutes a valid and binding
agreement of the Company and is enforceable against the Company in
accordance with its terms, except (i) that such enforcement may be subject
to bankruptcy, insolvency, reorganization, moratorium or other similar
laws, now or hereafter in effect, relating to creditors' rights generally
and (ii) that the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought. The execution, delivery and performance by the Company of this
Agreement, the Indenture and the Securities and the consummation of the
transactions contemplated hereby and thereby will not result in the
creation or imposition of any lien, charge or encumbrance upon any of the
assets of the Company or any of the Subsidiaries pursuant to the terms or
provisions of, or, except as disclosed in the Registration Statement or the
Final Prospectus, result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or give any other party a
right to terminate any of its obligations under, or result in the
acceleration of any obligation under, the articles of incorporation or by-
laws (or comparable instruments) of the Company or any of the Subsidiaries,
any indenture, mortgage, deed of trust, voting trust agreement, loan
agreement, bond, debenture, note agreement or other evidence of
indebtedness, lease, contract or other agreement or instrument to which the
Company or any of the Subsidiaries is a party or by which the Company or
any of the Subsidiaries or any of their respective properties is or are
bound or affected, or violate or conflict with any franchise or any
judgment, ruling, decree, order, statute, rule or regulation of any court
or other governmental agency or body applicable to the business or
properties of the Company or any of the Subsidiaries.
(n) The Company and each of the Subsidiaries has good and
marketable title to all franchises, properties and assets owned by it,
which are material to the business or operations of the Company and its
subsidiaries, taken as a whole, free and clear of all liens, charges,
encumbrances or restrictions, except such as are described in the Final
Prospectus. The Company and each of the Subsidiaries has valid, subsisting
and enforceable leases for the properties leased by it, with such
exceptions as would not materially interfere with the business or
operations of the Company and it subsidiaries, taken as a whole.
(o) All existing material contracts described in the Final
Prospectus to which the Company or any of the Subsidiaries is a party have
been duly authorized, executed and delivered by the Company or such
Subsidiary, constitute valid and binding agreements of the Company or such
Subsidiary and are enforceable against the Company or such Subsidiary in
accordance with the terms thereof, except (i) that such enforcement may be
subject to bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws, now or hereafter in effect, relating to
creditors' rights generally and (ii) that the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
(p) No statement, representation, warranty or covenant made by
the Company in this Agreement or the Indenture or made in any certificate
or document required by this Agreement to be delivered to the
Representatives was or will be, when made, inaccurate, untrue or incorrect
in any material respect.
(q) No holder of securities of the Company has rights to the
registration of any securities of the Company because of the filing of the
Registration Statement.
4. AGREEMENTS OF THE COMPANY. The Company agrees with each of the
several Underwriters as follows:
(a) The Company will not, from the Execution Date until the end
of such period as the Final Prospectus is required by law to be delivered
in connection with sales of the Securities by an Underwriter or dealer,
file any amendment or supplement to the Registration Statement or the Final
Prospectus, unless a draft thereof shall first have been submitted to the
Representatives within a reasonable period of time prior to the filing
thereof and the Representatives shall not have objected thereto in good
faith.
(b) The Company will notify the Representatives promptly, and
will confirm such advice in writing, (1) when any post-effective amendment
to the Registration Statement becomes effective, (2) of any request by the
Commission for amendments or supplements to the Registration Statement or
the Final Prospectus or for additional information, (3) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose or the threat thereof, (4) of the happening of any event during the
period mentioned in the second sentence of Section 4(e) that in the
judgment of the Company requires the Company to file an amendment or
supplement to the Registration Statement and (5) of receipt by the Company,
or any representatives or attorney of the Company, of any other
communication from the Commission relating to the Registration Statement,
the Basic Prospectus, any Preliminary Prospectus or the Final Prospectus or
the offering of the Securities. If at any time the Commission shall issue
any order suspending the effectiveness of the Registration Statement, the
Company will make every reasonable effort to obtain the withdrawal of such
order at the earliest possible moment.
(c) The Company will furnish to the Representatives, without
charge, one complete copy of the Registration Statement and of any post-
effective amendment thereto, including financial statements and schedules,
and all exhibits thereto (including any documents filed under the Exchange
Act and deemed to be incorporated by reference into the Final Prospectus),
and will upon request furnish to the Representatives, without charge, for
transmittal to each of the other Underwriters, additional copies of the
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules but without exhibits and documents
incorporated by reference therein.
(d) The Company will comply with all the provisions of any
undertakings contained in the Registration Statement.
(e) On the Effective Date, and thereafter from time to time, the
Company will deliver to each of the Underwriters, without charge, as many
copies of the Final Prospectus or any supplement thereto, as the
Representatives may reasonably request. The Company consents to the use of
any Preliminary Prospectus and the Final Prospectus or any amendment or
supplement thereto by the several Underwriters and by all dealers to whom
the Securities may be sold, both in connection with the offering or sale of
the Securities and for any period of time thereafter during which a
prospectus is required by law to be delivered in connection therewith. If
during such period of time, any event shall occur which in the judgment of
the Company or counsel to the Underwriters should be set forth in the Final
Prospectus in order to make any statement therein, in the light of the
circumstances under which it was made when delivered, not misleading, or if
it is necessary to supplement the Final Prospectus to comply with law, the
Company will forthwith prepare and duly file with the Commission an
appropriate supplement thereto, and will deliver to each of the
Underwriters, without charge, such number of copies thereof as the
Representatives may reasonably request. The Company shall not file any
document under the Exchange Act before the termination of the offering of
the Securities by the Underwriters if such document would be deemed to be
incorporated by reference into any Preliminary Prospectus or the Final
Prospectus, unless a draft thereof shall first have been submitted to the
Representatives within a reasonable period of time prior to the filing
thereof and the Representatives shall not have objected thereto in good
faith.
(f) Prior to any public offering of the Securities by the
Underwriters, the Company will cooperate with the Representatives and
counsel to the Underwriters in connection with the registration or
qualification of the Securities for offer and sale under the securities or
Blue Sky laws of such jurisdictions as the Representatives may request;
provided, that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take
any action which would subject it to general service of process in any
jurisdiction where it is not now so subject.
(g) During the period of five years commencing on the Effective
Date, the Company will furnish to the Representatives and each other
Underwriter who may so request copies of such financial statements and
other periodic and special reports as the Company may from time to time
distribute generally to the holders of any class of its capital stock, and
will furnish to the Representatives and each other Underwriter who may so
request a copy of each annual or other report it shall be required to file
with the Commission.
(h) The Company will make generally available to holders of its
securities as soon as may be practicable but in no event later than the
last day of the fifteenth full calendar month following the calendar
quarter in which the Execution Date falls, an earning statement (which need
not be audited but shall be in reasonable detail) for a period of 12 months
ended commencing after the effective date, within the meaning of and
satisfying the provisions of Section 11(a) of the Act (including Rule 158
of the Rules and Regulations).
(i) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Company will
pay, or reimburse if paid by the Representatives, all costs and expenses
incident to the performance of the obligations of the Company under this
Agreement, including but not limited to costs and expenses of or relating
to (1) the preparation, printing and filing of the Registration Statement
and exhibits thereto, the Basic Prospectus any Preliminary Prospectus, the
Final Prospectus and any amendment or supplement to the Registration
Statement or the Final Prospectus, (2) the preparation and delivery of
certificates representing the Securities, (3) the printing of this
Agreement, any Agreement Among Underwriters, any Dealer Agreements and any
Underwriters' Questionnaire, (4) furnishing (including costs of shipping
and mailing) such copies of the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus and the Final Prospectus, and all
amendments and supplements thereto, as may be requested for use in
connection with the offering and sale of the Securities by the Underwriters
or by dealers to whom Securities may be sold, (5) any filings required to
be made by the Underwriters with the NASD, and the fees, disbursements and
other charges of counsel for the Underwriters in connection therewith, (6)
the registration or qualification of the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions designated
pursuant to Section 4(f), including the fees, disbursements and other
charges of counsel to the Underwriters in connection therewith, and the
preparation and printing of preliminary, supplemental and final Blue Sky
memoranda, (7) counsel to the Company, (8) the transfer agent and registrar
for the Securities, (9) the rating of the Securities by one or more rating
agencies and (10) the Trustee and any agent of the Trustee and the fees,
disbursements and other charges of counsel for the Trustee in connection
with the Indenture and the Securities.
(j) If this Agreement shall be terminated by the Company
pursuant to any of the provisions hereof (other than pursuant to Section 8)
or if for any reason the Company shall be unable to perform its obligations
hereunder, the Company will reimburse the several Underwriters for all out-
of-pocket expenses (including the fees, disbursements and other charges of
counsel to the Underwriters) reasonably incurred by them in connection
herewith.
(k) The Company will not at any time, directly or indirectly,
take any action intended, or which might reasonably be expected, to cause
or result in, or which will constitute stabilization of the price of the
Securities to facilitate the sale or resale of any of the Securities.
(l) The Company will apply the net proceeds from the offering
and sale of the Securities in the manner set forth in the Final Prospectus
under "Use of Proceeds".
(m) Until sixty (60) days from the Execution Date, the Company
will not, without the consent of the Representatives, offer, sell or
contract to sell, or otherwise dispose of, by public offering, or announce
the public offering of, any other debt securities of the Company other than
the Securities.
5. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS. In addition to the
execution and delivery of the Price Determination Agreement, the
obligations of each Underwriter hereunder are subject to the following
conditions:
(a) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall be pending or threatened by the Commission, (ii) no order
suspending the effectiveness of the Registration Statement or the
qualification or registration of the Securities under the securities or
Blue Sky laws of any jurisdiction shall be in effect and no proceeding for
such purpose shall be pending before or threatened or contemplated by the
Commission or the authorities of any such jurisdiction, (iii) any request
for additional information on the part of the staff of the Commission or
any such authorities with respect to the offering of the Securities shall
have been complied with to the satisfaction of the staff of the Commission
or such authorities and (iv) after the Execution Date no amendment or
supplement to the Registration Statement or the Final Prospectus shall have
been filed unless a copy thereof was first submitted to the Representatives
and the Representatives did not object thereto in good faith, and the
Representatives shall have received certificates, dated the Closing Date
and signed on behalf of the Company by the Chief Executive Officer or the
Chairman of the Board of Directors of the Company and the Chief Financial
Officer of the Company (who may, as to proceedings threatened, rely upon
the best of their information and belief), to the effect of clauses (i),
(ii) and (iii).
(b) Since the respective dates as of which information is given
in the Registration Statement and the Final Prospectus (i) there shall not
have been a material adverse change in the general affairs, business,
business prospects, properties, management, condition (financial or
otherwise) or results of operations of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary
course of business, in each case other than as set forth in or contemplated
by the Registration Statement and the Final Prospectus and (ii) neither the
Company nor any of the Subsidiaries shall have sustained any loss or
interference with its business or properties from fire, explosion, flood or
other casualty, whether or not covered by insurance, or from any labor
dispute or any court or legislative or other governmental action, order or
decree, which is not set forth in the Registration Statement and the Final
Prospectus, and which in each case in clause (ii) is material to the
Company and its subsidiaries, taken as a whole, if in the judgment of the
Representatives any such development makes it impracticable or inadvisable
to consummate the sale and delivery of the Securities by the Underwriters
in accordance with the terms hereof and thereof.
(c) Since the respective dates as of which information is given
in the Registration Statement and the Final Prospectus, there shall have
been no litigation or other proceeding instituted against the Company or
any of the Subsidiaries or any of their respective officers or directors in
their capacities as such, before or by any federal, state or local court,
commission, regulatory body, administrative agency or other governmental
body, domestic or foreign, in which litigation or proceeding an unfavorable
ruling, decision or finding would materially and adversely affect the
business, properties, business prospects, condition (financial or
otherwise) or results of operations of the Company and its subsidiaries,
taken as a whole.
(d) Each of the representations and warranties of the Company
contained herein shall be true and correct in all material respects at the
Closing Date and all covenants and agreements herein contained to be
performed on the part of the Company and all conditions herein contained to
be fulfilled or complied with by the Company at or prior to the Closing
Date shall have been duly performed, fulfilled or complied with.
(e) On the Closing Date, the Representatives shall have received
an opinion, dated the Closing Date, and satisfactory in form and substance
to counsel for the Underwriters, from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., General
Counsel of the Company, and from Jones, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, Poitevent,
▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., special counsel to the Company, to the
effects set forth in Exhibit B and Exhibit C hereto, respectively.
(f) On the Closing Date, the Representatives shall have received
an opinion, dated the Closing Date, from Winthrop, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, counsel to the Underwriters, with respect to the Registration
Statement, the Final Prospectus and this Agreement, which opinion shall be
satisfactory in all respects to the Representatives. In giving such
opinion, such counsel may rely, as to all matters governed by the laws of
the State of Louisiana, upon the opinion of ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P. Such counsel may also state
that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the
Company and its subsidiaries, and certificates of public officials.
(g) Concurrently with the execution and delivery of this
Agreement, KPMG shall have furnished to the Representatives a letter, dated
the date of this Agreement, addressed to the Representatives and in form
and substance satisfactory to the Representatives, confirming that they are
independent accountants with respect to the Company as required by the Act
and the Rules and Regulations and concerning the financial and other
statistical and numerical information contained or incorporated by
reference in the Registration Statement. At the Closing Date, KPMG shall
have furnished to the Representatives a letter, dated the date of the
Closing Date, which shall confirm, on the basis of a review in accordance
with the procedures set forth in the letter from KPMG, that nothing has
come to their attention during the period from the date of their letter
referred to in the prior sentence to a date (specified in the letter) not
more than five days prior to the Closing Date which would require any
change in their letter dated the Execution Date if it were required to be
dated and delivered at the Closing Date.
(h) At the Closing Date, there shall be furnished to the
Representatives a certificate, dated the date of its delivery, signed on
behalf of the Company by each of the Chief Executive Officer and the Chief
Financial Officer of the Company, in form and substance satisfactory to the
Representatives, to the effect that:
(i) Each signer of such certificate has carefully examined
the Registration Statement and the Final Prospectus and (A) the
Registration Statement is true and correct in all material respects
and does not omit to state a material fact required to be stated
therein or necessary in order to make the statements therein not
untrue or misleading, (B) the Final Prospectus is true and correct in
all material respects and does not 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 untrue or misleading (it
being understood that to the extent a statement in the Final
Prospectus, including any documents deemed to be incorporated by
reference therein, refers to and speaks as of a specific date, each
signer of such certificate only represents with respect to such
statement that it was true and correct in all material respects as of
such date), and (C) since the Execution Date, no event has occurred as
a result of which it is necessary to supplement the Final Prospectus
in order to make the statements therein, in light of the circumstances
under which they were made, not untrue or misleading in any material
respect and there has been no document required to be filed under the
Exchange Act and the Exchange Act Rules and Regulations that upon such
filing would be deemed to be incorporated by reference into the Final
Prospectus that has not been so filed.
(ii) Each of the representations and warranties of the
Company contained in this Agreement were, when originally made, and
are true and correct in all material respects.
(iii) Each of the covenants required herein to be performed
by the Company on or prior to the Closing Date has been duly, timely
and fully performed and each condition herein required to be complied
with by the Company on or prior to the Closing Date has been duly,
timely and fully complied with.
(i) The Securities shall be qualified for sale in such states as
the Representatives may reasonably request, each such qualification shall
be in effect and not subject to any stop order or other proceeding on the
Closing Date.
(j) The Company shall have furnished to the Representatives such
certificates, in addition to those specifically mentioned herein, as the
Representatives may have reasonably requested as to the accuracy and
completeness at the Closing Date of any statement in the Registration
Statement or the Final Prospectus or any documents filed under the Exchange
Act and deemed to be incorporated by reference into the Final Prospectus,
as to the accuracy at the Closing Date of the representations and
warranties of the Company herein, as to the performance by the Company of
its obligations hereunder, or as to the fulfillment of the conditions
concurrent and precedent to the obligations hereunder of the
Representatives.
6. INDEMNIFICATION.
(a) The Company will indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person, if any, who controls each Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act from
and against any and all losses, claims, liabilities, expenses and damages
(including any and all investigative, legal and other expenses reasonably
incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claim asserted), to which they, or any of
them, may become subject under the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, liabilities, expenses or damages arise out of or are based
on any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus or the Final Prospectus or any amendment or
supplement thereto or in any documents filed under the Exchange Act and
deemed to be incorporated by reference into the Final Prospectus, or the
omission or alleged omission to state in (i) the Registration Statement,
any amendment or supplement thereto a material fact required to be stated
in it or necessary to make the statements in it not misleading or (ii) the
Basic Prospectus, any Preliminary Prospectus or the Final Prospectus 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 will not be liable to the extent that such loss,
claim, liability, expense or damage arises from the sale of the Securities
in the public offering to any person by an Underwriter and is based on an
untrue statement or omission or alleged untrue statement or omission made
in reliance on and in conformity with information relating to any
Underwriter furnished in writing to the Company by the Representatives on
behalf of any Underwriter expressly for inclusion in the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus or the Final
Prospectus and provided further, that the Company shall not be liable in
any such case under the indemnity agreement in this Section 6(a) with
respect to any Preliminary Prospectus or Final Prospectus, to the extent
that any such loss, claim, liability, expense or damage results from the
fact that the Underwriter sold Securities to a person to whom there was not
sent or given, at or prior to the written confirmation of such sale, a copy
of the Final Prospectus or of the Final Prospectus as then amended or
supplemented in any case where such delivery is required by the Act if the
Company has previously furnished copies thereof to the Underwriter and the
loss, claim, liability, expense or damage of the Underwriter, the
directors, officers, employees or agents of the Underwriter or any person
who controls the Underwriter results from an untrue statement, alleged
untrue statement, omission or alleged omission of a material fact contained
in the Preliminary Prospectus which was corrected in the Final Prospectus
(or the Final Prospectus as amended or supplemented). This indemnity
agreement is in addition to any liability that the Company might otherwise
have.
(b) Each Underwriter will indemnify and hold harmless the
Company and its officers, employees and agents and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, each director of the Company and each officer of
the Company who signs the Registration Statement to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only insofar
as losses, claims, liabilities, expenses or damages arise out of or are
based on any untrue statement or omission or alleged untrue statement or
omission made in reliance on and in conformity with information relating to
such Underwriter furnished in writing to the Company by the Representatives
on behalf of such Underwriter expressly for use in the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus or the Final
Prospectus. This indemnity is in addition to any liability that each
Underwriter might otherwise have.
(c) Any party that proposes to assert the right to be
indemnified under this Section 6 will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim
is to be made against an indemnifying party or parties under this Section
6, notify each such indemnifying party of the commencement of such action,
enclosing a copy of all papers served, but the omission so to notify such
indemnifying party will not relieve it from any liability that it may have
to any indemnified party under the foregoing provisions of this Section 6
unless, and only to the extent that, such omission results in the
forfeiture of substantive rights or defenses by the indemnifying party. If
any such action is brought against any indemnified party and it notifies
the indemnifying party of its commencement, the indemnifying party will be
entitled to participate in and, to the extent that it elects by delivering
written notice to the indemnified party promptly after receiving notice of
the commencement of the action from the indemnified party, jointly with any
other indemnifying party similarly notified, to assume the defense of the
action, with counsel satisfactory to the indemnified party, and after
notice from the indemnifying party to the indemnified party of its election
to assume the defense, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as provided below
and except for the reasonable costs of investigation subsequently incurred
by the indemnified party in connection with the defense. The indemnified
party will have the right to employ its own counsel in any such action, but
the fees, expenses and other charges of such counsel will be at the expense
of such indemnified party unless (1) the employment of counsel by the
indemnified party has been authorized in writing by the indemnifying party,
(2) the indemnified party has reasonably concluded (based on advice of
counsel) that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those
available to the indemnifying party, (3) a conflict or potential conflict
exists (based on advice of counsel to the indemnified party) between the
indemnified party and the indemnifying party (in which case the
indemnifying party will not have the right to direct the defense of such
action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and other
charges of counsel will be at the expense of the indemnifying party or
parties. It is understood that the indemnifying party or parties shall
not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees, disbursements and other
charges of more than one separate firm (plus any local counsel retained by
you in your reasonable judgment) admitted to practice in such jurisdiction
at any one time for all such indemnified party or parties. All such fees,
disbursements and other charges will be reimbursed by the indemnifying
party promptly as they are incurred. An indemnifying party will not be
liable for any settlement of any action or claim effected without its
written consent (which consent will not be unreasonably withheld).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 6 is applicable in accordance with its terms but
for any reason is held to be unavailable from the Company or the
Underwriters, the Company and the Underwriters will contribute to the total
losses, claims, liabilities, expenses and damages (including any
investigative, legal and other expenses reasonably incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding
or any claim asserted, but after deducting any contribution received by the
Company from persons other than the Underwriters, such as persons who
control the Company within the meaning of the Act, officers of the Company
who signed the Registration Statement and directors of the Company, who
also may be liable for contribution) to which the Company and any one or
more of the Underwriters may be subject in such proportion as shall be
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the Underwriters,
in each case as set forth in the table on the cover page of the Final
Prospectus. If, but only if, the allocation provided by the foregoing
sentence is not permitted by applicable law, the allocation of contribution
shall be made in such proportion as is appropriate to reflect not only the
relative benefits referred to in the foregoing sentence but also the
relative fault of the Company, on the one hand, and the Underwriters, on
the other, with respect to the statements or omissions which resulted in
such loss, claim, liability, expense or damage, or action in respect
thereof, as well as any other relevant equitable considerations with
respect to such offering. Such relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or the Representatives on behalf of the
Underwriters, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The Company and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this Section 6(d) were to
be determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation which
does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss,
claim, liability, expense or damage, or action in respect thereof, referred
to above in this Section 6(d) shall be deemed to include, for purpose of
this Section 6(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 6(d), no
Underwriter shall be required to contribute any amount in excess of the
underwriting discounts received by it, and no person found guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) will be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations to
contribute as provided in this Section 6(d) are several in proportion to
their respective underwriting obligations and not joint. For purposes of
this Section 6(d), any person who controls a party to this Agreement within
the meaning of the Act will have the same rights to contribution as that
party, and each officer of the Company who signed the Registration
Statement will have the same rights to contribution as the Company, subject
in each case to the provisions hereof. Any party entitled to contribution,
promptly after receipt of notice of commencement of any action against such
party in respect of which a claim for contribution may be made under this
Section 6(d), will notify any such party or parties from whom contribution
may be sought, but the omission so to notify will not relieve the party or
parties from whom contribution may be sought from any other obligation it
or they may have under this Section 6(d). No party will be liable for
contribution with respect to any action or claim settled without its
written consent (which consent will not be unreasonably withheld).
(e) The indemnity and contribution agreements contained in this
Section 6 and the representations and warranties of the Company contained
in this Agreement shall remain operative and in full force and effect
regardless of (i) any investigation made by or on behalf of the
Underwriters, (ii) acceptance of any of the Securities and payment therefor
or (iii) any termination of this Agreement.
7. TERMINATION. The obligations of the several Underwriters under
this Agreement may be terminated at any time on or prior to the Closing
Date by notice to the Company from the Representatives, without liability
on the part of any Underwriter to the Company, if, prior to delivery and
payment for the Securities, in the sole judgment of the Representatives,
(i) trading in securities generally on the New York Stock Exchange shall
have been suspended or limited or minimum or maximum prices shall have been
generally established on such exchange, or additional material governmental
restrictions, not in force on the date of this Agreement, shall have been
imposed upon trading in securities generally by such exchange or by order
of the Commission or any court or other governmental authority, and any
such suspensions, limitations or restrictions shall continue to remain in
effect, (ii) a general banking moratorium shall have been declared by
either federal or New York State authorities, (iii) any material adverse
change in the financial or securities markets in the United States or in
political, financial or economic conditions in the United States or any
outbreak or material escalation of hostilities or declaration by the United
States of a national emergency or war or other calamity or crisis shall
have occurred the effect of any of which is such as to make it, in the sole
judgment of the Representatives, impracticable or inadvisable to market the
Securities on the terms and in the manner contemplated by the Final
Prospectus or (iv) since the Execution Date, there shall have been a
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purpose of Rule 436(g) under the Act) or a notice given of any intended or
potential decrease in any such rating or of a possible change in any such
rating that does not indicate the direction of the possible change.
8. SUBSTITUTION OF UNDERWRITERS. If any one or more of the
Underwriters shall fail or refuse to purchase any of the Securities which
it or they have agreed to purchase hereunder, and the aggregate principal
amount of Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate principal amount of Securities, the other Underwriters shall be
obligated, severally, to purchase the Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase, in
the proportions which the principal amount of Securities which they have
respectively agreed to purchase pursuant to Section 1 bears to the
aggregate principal amount of Securities which all such non-defaulting
Underwriters have so agreed to purchase, or in such other proportions as
the Representatives may specify; provided that in no event shall the
maximum principal amount of Securities which any Underwriter has become
obligated to purchase pursuant to Section 1 be increased pursuant to this
Section 8 by more than one-ninth of the principal amount of Securities
agreed to be purchased by such Underwriter without the prior written
consent of such Underwriter. If any Underwriter or Underwriters shall fail
or refuse to purchase any Securities and the aggregate principal amount of
Securities which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase exceeds one-tenth of the aggregate principal
amount of the Securities and arrangements satisfactory to the
Representatives and the Company for the purchase of such Securities are not
made within 48 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter or the
Company for the purchase or sale of any Securities under this Agreement.
In any such case either the Representatives or the Company shall have the
right to postpone the Closing Date, but in no event for longer than seven
days, in order that the required changes, if any, in the Registration
Statement and in the Final Prospectus or in any other documents or
arrangements may be effected. Any action taken pursuant to this Section 8
shall not relieve any defaulting Underwriter from liability in respect of
any default of such Underwriter under this Agreement.
9. MISCELLANEOUS. Notice given pursuant to any of the provisions of
this Agreement shall be in writing and, unless otherwise specified, shall
be mailed or delivered (a) if to the Company, at the office of the Company,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇, Executive Vice President, Chief Administrative Officer, General
Counsel and Secretary or (b) if to the Underwriters, to the Representatives
at the offices of ___________________________. Any such notice shall be
effective only upon receipt. Any notice under Section 7 or 8 may be made
by telex or telephone, but if so made shall be subsequently confirmed in
writing.
This Agreement has been and is made solely for the benefit of the
several Underwriters and the Company and of the controlling persons,
directors and officers referred to in Section 6, and their respective
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns" as
used in this Agreement shall not include a purchaser, as such purchaser, of
Securities from any of the several Underwriters.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
This Agreement may be signed in two or more counterparts with the same
effect as if the signatures thereto and hereto were upon the same
instrument.
In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
The Company and the Underwriters each hereby irrevocably waive any
right they may have to trial by jury in respect of any claim based upon or
arising out of this Agreement or the transactions contemplated hereby.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
CENTURYTEL, INC.
By:
Name:
Title:
Confirmed as of the date first
above mentioned:
[names]
Acting on behalf of themselves
and as the Representatives
of the other several Underwriters
named in Schedule I hereof.
[name]
By: ___________________________________
Name:
Title:
SCHEDULE I
UNDERWRITERS
Principal Amount of
Series______ Notes
Name Notes To Be Purchased
------------------------------------------ -----------------------------------
------------------------------------------ $
___________________________________
Total..................................... $
===================================
SCHEDULE II
SUBSIDIARIES
NAME
CenturyTel of Central Louisiana, LLC (successor to Central Louisiana
Telephone Company, Inc.)
CenturyTel of ▇▇▇▇▇▇▇▇▇▇, LLC (successor to ▇▇▇▇▇▇▇▇▇▇ Telephone Company)
CenturyTel of Arkansas, Inc. (formerly named Century Telephone of Arkansas,
Inc.)
CenturyTel of Mountain Home, Inc. (formerly named Mountain Home Telephone
Co., Inc.)
CenturyTel of Wisconsin, LLC (successor to Century Telephone of Wisconsin,
Inc.)
CenturyTel Midwest-Michigan, Inc. (formerly named Century Telephone
Midwest, Inc.)
CenturyTel of Michigan, Inc. (formerly named Century Telephone of Michigan,
Inc.)
Century Cellunet of Southern Michigan, Inc.
CenturyTel Wireless, Inc. (formerly named Century Cellunet, Inc.)
CenturyTel Investments, LLC (successor to Century Investments, Inc.)
CenturyTel of San Marcos, Inc. (formerly named Century Telephone of San
Marcos, Inc.)
CenturyTel of Ohio, Inc. (formerly named Century Telephone of Ohio, Inc.)
Celutel, Inc.
CenturyTel of the Northwest, Inc. (formerly named Pacific Telecom, Inc.)
Pacific Telecom Cellular, Inc.
EXHIBIT A
CENTURYTEL, INC.
_____________________________
PRICE DETERMINATION AGREEMENT
-----------------------------
_________ __, 2000
[name]
As Representatives of
the several Underwriters
[address]
Dear Ladies and Gentlemen:
Reference is made to the Underwriting Agreement, dated __________
__,2000 (the "Underwriting Agreement"), among CenturyTel, Inc., a Louisiana
corporation (the "Company"), and the several Underwriters named in Schedule
I thereto or hereto (the "Underwriters"), for whom [name] are acting as
representatives (the "Representatives"). The Underwriting Agreement
provides for the purchase by the Underwriters from the Company, subject to
the terms and conditions set forth therein, of an aggregate of
$_____________ principal amount of the Company's ___% Senior Notes, Series
_____, due ____ (the "Series _____ Notes") and $____________ principal
amount of the Company's _____% Senior Notes, Series _____, due _____ (the
"Series _____ Notes" and, together with the Series _____ Notes, the
"Securities") to be issued pursuant to an Indenture dated as of March 31,
1994 between the Company and Regions Bank (successor to First American
Bank & Trust of Louisiana and Regions Bank of Louisiana), as Trustee. This
Agreement is the Price Determination Agreement referred to in the
Underwriting Agreement.
Pursuant to Section 1 of the Underwriting Agreement, the undersigned
agree with the Representatives that the purchase price for the Securities
to be paid by each of the several Underwriters shall be ___% of the
aggregate principal amount of the Series _____ Notes and _____% of the
aggregate principal amount of the Series _____ Notes set forth opposite the
name of such Underwriter in Schedule I attached hereto.
The Company represents and warrants to each of the Underwriters that
the representations and warranties of the Company set forth in Section 3 of
the Underwriting Agreement are accurate in all material respects as though
expressly made at and as of the date hereof.
As contemplated by the Underwriting Agreement, attached as Schedule I
is a completed list of the several Underwriters, which shall be a part of
this Agreement and the Underwriting Agreement.
THIS AGREEMENT SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
If the foregoing is in accordance with your understanding of the
agreement among the Underwriters and the Company, please sign and return to
the Company a counterpart hereof, whereupon this instrument along with all
counterparts and together with the Underwriting Agreement shall be a
binding agreement among the Underwriters and the Company in accordance with
its terms and the terms of the Underwriting Agreement.
Very truly yours,
CENTURYTEL, INC.
By:
___________________________________
Name:
Title:
Confirmed as of the date
first above mentioned:
[name]
Acting on behalf of themselves
and as the Representatives
of the other several Underwriters
named in Schedule I hereof.
[name]
By: __________________________________
Name:
Title:
[name]
By: __________________________________
Name:
Title:
EXHIBITS B AND C INTENTIONALLY DELETED
