CITIZENS UTILITIES COMPANY
Debt Securities
UNDERWRITING AGREEMENT
To Representatives named in New York, New York
Schedule I, of the several Underwriters (Date)
named in Schedule II hereto
Dear Sirs:
Citizens Utilities Company, a Delaware corporation
(the "Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the Underwriters named in Schedule II hereto (the
"Underwriters") for whom you are acting as Representatives (the
"Representatives") the Company's debt securities of the designation, with the
terms and in the aggregate principal amount specified in Schedule I hereto (the
"Debt Securities"), to be issued under the Indenture, dated as of August 15,
1991, between the Company and Chemical Bank, as Trustee (the "Trustee"), as
supplemented and amended by the First, Second, Third, Fourth, Fifth and Sixth
Supplemental Indentures dated as of August 15, 1991, January 15, 1992, April 15,
1994, October 1, 1994, June 15, 1995, and October 15, 1995 respectively, and as
to be supplemented and amended by a supplemental indenture relating to the Debt
Securities (such Indenture as may be further supplemented and amended being
hereinafter referred to as the "Indenture").
I. Representations and Warranties by the Company. The Company
represents and warrants to each
Underwriter that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933 (the "Act") and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form, including a prospectus, for the registration
under the Act of the Debt Securities, which registration statement has
become effective. Such registration statement and prospectus may have
been amended or supplemented from time to time prior to the date of
this Agreement. Any such amendment or supplement was filed with the
Commission and any such amendment has become effective. Promptly upon
execution of this Agreement, the Company will file with the Commission
a prospectus supplement (the "Prospectus Supplement") relating to the
Debt Securities pursuant to Rule 424 under the Act. Copies of such
registration statement and prospectus, any such amendment or
supplement, the Prospectus Supplement and all documents incorporated by
reference therein which were filed with the Commission on or prior to
the date of this Agreement have been delivered to you. The registration
statement and prospectus, as amended or supplemented prior to the date
of this Agreement, and as supplemented by the Prospectus Supplement are
hereinafter called the "Registration Statement" and the "Prospectus",
respectively. Any reference herein to the Registration Statement or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Securities Exchange Act of 1934 (the "Exchange
Act") on or before the date of this Agreement, and any reference herein
to the terms "amend", "amendment" or "supplement" with respect to the
Registration Statement or the Prospectus shall be deemed to include the
filing of any document under the Exchange Act deemed to be incorporated
by reference therein after the date of this Agreement.
(b) (i) The Registration Statement, at the time it became
effective, any post-effective amendment thereto, at the time it became
effective, the Prospectus, at the date of this Agreement and at the
Closing Date (as hereinafter defined), any amendments thereof and
supplements thereto and the Indenture complied or will comply in all
material respects with the Act, the Trust Indenture Act of 1939 (the
"Trust Indenture Act") and the Exchange Act and the respective rules
thereunder and (ii) the Registration Statement did not contain and, as
amended by any amendment thereto, will not contain any untrue statement
of a material fact or omitted or will omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading and the Prospectus and any amendment
thereof or supplement thereto does not contain and will not contain any
untrue statement of a material fact or omits or will omit to state any
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; provided, however, that the
Company makes no representations or warranties as to (A) that part of
the Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act
of the Trustee or (B) the information contained in or omitted from the
Registration Statement or the Prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for use in connection with the
preparation of the Prospectus.
(c) The documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all material
respects to the requirements of the Act or the Exchange Act and the
rules and regulations of the Commission thereunder, and any documents
so filed and incorporated by reference subsequent to the date of this
Agreement will, when they are filed with the Commission, conform in all
material respects to the requirements of the Act and the Exchange Act,
and the rules and regulations of the Commission thereunder; and none of
such documents include or will include any untrue statement of a
material fact or omit or will omit to state any material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
(d) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, except as
set forth in the Registration Statement and the Prospectus, there has
not been any material adverse change in the business, properties or
financial condition of the Company and its subsidiaries, considered as
a whole, and there have not been any transactions entered into by the
Company or any of its subsidiaries which is material to the Company and
its subsidiaries, considered as a whole, other than transactions in the
ordinary course of business and transactions contemplated by the
Registration Statement or Prospectus.
(e) Neither the issuance or sale of the Debt Securities, nor
the performance of the terms and provisions thereof and of the
Indenture, will conflict with, result in a breach of or constitute a
default under the terms of the Certificate of Incorporation or By-Laws
of the Company or any indenture, mortgage, deed of trust or other
agreement or instrument to which the Company is a party or by which it
is bound or any order or regulation applicable to the Company of any
Court, regulatory body, administrative agency or governmental body
having jurisdiction over the Company.
(f) The Indenture, except for the supplemental indenture
relating to the Debt Securities, has been duly authorized and
delivered, and, when the supplemental indenture relating to the Debt
Securities has been executed and delivered by the Company and the
Trustee, the Indenture, including such supplemental indenture, will
have been duly authorized and delivered and will constitute a valid and
legally binding instrument enforceable against the Company in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other laws from time to time
in effect affecting the enforcement of creditors' rights or of the
security provided by the Indenture, or by the application of general
principles of equity, and the Indenture has been qualified under the
Trust Indenture Act; the Debt Securities have been duly authorized,
and, when issued and delivered pursuant to this Agreement, will have
been duly executed, authenticated, issued and delivered, will
constitute valid and legally binding obligations of the Company
entitled to the benefits and security of the Indenture in accordance
with their and its terms, subject to the qualification in the preceding
clause with respect to the enforceability of the Indenture; and the
Debt Securities and the Indenture conform to the descriptions thereof
in the Prospectus.
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to you and each other Underwriter, and you and each other
Underwriter agree, severally and not jointly, to purchase from the Company, at
the purchase price set forth in Schedule I hereto, the respective principal
amounts of the Debt Securities set forth opposite your respective names in
Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Debt
Securities shall be made at the place, date and time specified in Schedule I
hereto (or such other place, date and time not later than ten full business days
thereafter as the Representatives and the Company shall designate), which date
and time may be postponed by agreement between the Representatives and the
Company or as provided in Section 9 hereof (such date and time being herein
called the "Closing" or "Closing Date"). Delivery of the Debt Securities shall
be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company payable by official bank check or checks payable in federal (same day)
funds. The Debt Securities shall be in definitive form and shall be registered
in such names and in such authorized denominations as the Representatives may
request not less than 48 hours in advance of the Closing Date, provided,
however, that if the Debt Securities are to be sold in book-entry form, a global
Debenture shall be delivered in definitive form registered in the name of Cede &
Co.
The Company agrees to have the Debt Securities available for
inspection, checking and packaging by the Representatives in New York, New York,
not later than noon, New York City time, on the last business day prior to the
Closing Date.
4. Agreements. The Company agrees with the several
Underwriters that:
(a) With your consent, the Company will cause the Prospectus
Supplement to be filed pursuant to Rule 424 under the Act and will
notify the Representatives promptly of such filing. During the period
for which a prospectus relating to the Debt Securities is required to
be delivered under the Act, the Company will promptly advise the
Representatives (i) when any amendment to the Registration Statement
shall have become effective, (ii) when any subsequent supplement to the
Prospectus has been filed or mailed for filing, (iii) of any request by
the Commission for any amendment of or supplement to the Registration
Statement or the Prospectus or for any additional information, (iv) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceedings for that purpose, and (v) of the receipt
by the Company of any notification with respect to the suspension of
the qualification of the Debt Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose.
The Company will use its best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof. The Company will not file any amendment of the
Registration Statement or supplement to the Prospectus (other than any
prospectus supplement relating to the offering of the Debt Securities
or a prospectus or prospectus supplement relating to an offering of
equity securities registered under the Registration Statement, or of
debt securities registered under the Registration Statement and
permitted by Section 4(f) hereof, and other than any document required
to be filed under the Exchange Act which upon filing is deemed to be
incorporated by reference in the Registration Statement or Prospectus)
unless the Company has furnished to the Representatives a copy for
their review prior to filing and will not file any such proposed
amendment or supplement to which they reasonably object. The Company
will furnish to the Representatives prior to the filing thereof a copy
of any such prospectus supplement and any document which upon filing is
deemed to be incorporated by reference in the Registration Statement or
Prospectus.
(b) If, at any time when a prospectus relating to the Debt
Securities is required to be delivered under the Act, any event occurs
as a result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
or if it shall be necessary at any time to amend or supplement the
Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the Company promptly will prepare and file with the
Commission, subject to paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or an
amendment or supplement which will effect such compliance.
(c) The Company will furnish to each of the Representatives a
signed copy of the Registration Statement as originally filed and of
each amendment thereto, including statement on Form T-1 of the Trustee
and all powers of attorney, consents and exhibits filed therewith
(other than exhibits incorporated by reference), and will deliver to
the Representatives conformed copies of the Registration Statement, the
Prospectus (including all documents incorporated by reference therein)
and, so long as delivery of a prospectus by an Underwriter or dealer
may be required by the Act, all amendments of and supplements to such
documents, in each case as soon as available and in such quantities as
the Representatives may reasonably request.
(d) The Company will furnish such information, execute such
instruments and take such action as may be required to qualify the Debt
Securities for sale under the laws of those states specified in a
writing heretofore delivered by you and countersigned by the Company
and such other jurisdictions as the Representatives may designate in
which there is a change of law or regulation after the date hereof
affecting the status of the Debt Securities as exempt Debt Securities
under such laws and will maintain such qualifications in effect so long
as required for the distribution of the Debt Securities; provided,
however, that the Company shall not be required 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 or unlimited service
of process in any jurisdiction where it is not now so subject.
(e) So long as the Debt Securities are outstanding, the
Company will furnish (or cause to be furnished) to each of the
Representatives, upon request, copies of (i) all reports to
stockholders of the Company and (ii) all reports and financial
statements filed with the Commission.
(f) During the period beginning from the date of this
Agreement and continuing to and including the earlier of (i) the
termination of trading restrictions on the Debt Securities, as notified
to the Company by the Representatives, or (ii) the tenth day after the
Closing Date for the Debt Securities, the Company will not offer, sell,
or otherwise dispose of any debentures or similar debt securities of
the Company (except debt securities which are subordinated to the Debt
Securities, bank debt, commercial paper or under prior contractual
commitments which have been disclosed to you), without the prior
written consent of the Representatives, which consent shall not be
unreasonably withheld.
(g) The Company will make generally available to its security
holders and to the Representatives, as soon as practicable, but not
later than sixteen months after the "effective date" of the
Registration Statement (as such term is defined in Rule 158(c) under
the Act), a consolidated earning statement (which need not be audited)
of the Company, covering a period of twelve-months beginning after such
effective date which will satisfy the provisions of Section 11(a) of
the Act.
5. Expenses. The Company will pay or cause to be paid the
following:
(i) the fees, disbursements and expenses of the Company's
counsel and accountants in connection with the registration of the Debt
Securities under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement and the
Prospectus and amendments and supplements thereto and the furnishing of copies
thereof and of any preliminary Prospectus to the Underwriters and dealers;
(ii) the cost of printing this Agreement, the
Supplemental Indenture under which the Debt Securities are issued and the Blue
Sky Survey;
(iii) all expenses including fees and disbursements of counsel
(up to a maximum of $_________) in connection with the qualification of the Debt
Securities under the securities or Blue Sky laws of such jurisdictions as the
Representatives shall reasonably request and the preparation of a Blue Sky
Survey;
(iv) any fees charged by the rating services for rating
the Debt Securities;
(v) the cost of preparing the Debt Securities;
(vi) the fees and expenses of the Trustee and any agent
of the Trustee and the fees and disbursements of counsel for the Trustee in
connection with the Indenture and the Debt Securities; and
(vii) all other costs and expenses incident to the performance
of the Company's obligations hereunder which are not otherwise specifically
provided for in this Section 5. Except as provided in Section 5 and Section 11
hereof, the Underwriters will pay all of their own costs and expenses, including
the fees of their counsel, transfer taxes on resale of any of the Debt
Securities by them, and any advertising expenses connected with any offers they
may make. The Company shall not in any event be liable to any of the several
Underwriters for damages on account of loss of anticipated profits.
6. Conditions to the Obligations of the Under-writers. The
obligations of the Underwriters to purchase the Debt Securities shall be subject
to the accuracy in all material respects of the representations and warranties
on the part of the Company contained herein (except insofar as such
representations and warranties have already been qualified as to materiality
therein) as of the date hereof and the Closing Date, to the accuracy of the
statements of Company officers made in any certificates given pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the Commission;
(b) There shall be in full force and effect, on the date of
this Agreement and on the Closing Date, an order or orders, if
necessary, of the Federal Energy Regulatory Commission ("FERC")
authorizing the issue and sale of the Debt Securities on the terms set
forth or contemplated in this Agreement, and no additional order of
FERC shall be necessary for such issuance and sale;
(c) At the Closing Date, the Company shall have received all
authorizations from any state regulatory commission (other than
pursuant to any state "Blue Sky" laws) necessary for the issuance and
sale of the Debt Securities and related transactions on the terms set
forth or contemplated in this Agreement and containing no provision
unacceptable to the Representatives, which such authorizations shall be
in full force and effect and no order or additional order of any such
Commission shall be necessary for such issuance and sale which has not
been obtained;
(d) At the Closing Date, the Representatives shall have been
furnished with the following opinions, addressed to the Underwriters
(with conformed copies thereof for each of the other Underwriters), in
form and substance satisfactory to the Representatives, dated the
Closing Date or a date not more than three days prior thereto:
(i) Opinion of Boulanger, Hicks & Churchill,
P.C., New York, New York, counsel to the Company;
(ii) Opinions of Brown & Bain, P.A., Phoenix,
Arizona; LeBoeuf, Lamb, Greene & MacRae, Denver, Colorado; Cades
Schutte Fleming & Wright, Honolulu, Hawaii; Marshall Ordemann, counsel
to the Louisiana Gas Division of the Company, Harvey, Louisiana; Stokes
& Bartholomew, Nashville, Tennessee; Miller, Eggleston and Rosenberg,
Ltd., Burlington, Vermont; and Jackson & Kelly, Charleston, West
Virginia (or other local counsel to the Company), counsel to the
Company; and
(iii) Opinion of Simpson Thacher & Bartlett,
New York, New York, counsel to the Underwriters;
(e) At the Closing Date, the Representatives shall have been
furnished a letter dated the Closing Date, in form and substance
satisfactory to the Representatives, from KPMG Peat Marwick, the
Company's independent public accountants, containing statements and
information heretofore agreed upon with respect to the financial
statements and certain financial information contained in or
incorporated by reference into the Prospectus;
(f) At the Closing Date, the Representatives shall have
received a certificate, dated the Closing Date, signed by an officer of
the Company, to the effect that, (A) since the respective dates as of
which information is given in the Registration Statement and
Prospectus, there has not been any material adverse change in the
business, properties or financial condition of the Company and its
subsidiaries, considered as a whole; provided that a downgrading of the
rating of the Company's publicly-held securities by itself shall not be
deemed to be a "material adverse change", and (B) since such dates,
there has not been any transaction entered into by the Company or any
of its subsidiaries other than transactions referred to in, or
contemplated by, the Registration Statement and Prospectus and
transactions which are not material to the Company and its subsidiaries
considered as a whole;
(g) At the Closing Date, the Representatives shall have
received a certificate, dated the Closing Date signed by an officer of
the Company, to the effect that, since the respective dates as of which
information is given in the Registration Statement and Prospectus,
neither the Company nor any of its subsidiaries shall have sustained a
loss by fire, flood, accident or other calamity which is substantial
with respect to the property of the Company and its subsidiaries,
considered as a whole. At the Closing the Representatives shall have
been furnished with certificates satisfactory to the Representatives as
to the accuracy of its representations and warranties herein at and as
of the Closing and as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to the Closing, and
the Company also shall have furnished to you a certificate satisfactory
to you as to the matters set forth in subsections (a) and (b) of this
Section 6.
If any of the conditions specified in this Section 6 shall not
have been fulfilled when and as required by this Agreement, this Agreement and
all obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to the Company in writing, or by telephone or telegraph confirmed
in writing.
7. Conditions of Company's Obligations. The
obligations of the Company to sell and deliver the Debt Securities are subject
to the following conditions:
(a) Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened.
(b) The conditions referred to in subsections (b) and (c) of
Section 6 shall have been met and no order or authorization referred to
therein shall contain any provision unacceptable to the Company.
If any of the conditions specified in this Section 7 shall not
have been fulfilled, this Agreement and all obligations of the Company hereunder
may be canceled on or at any time prior to the Closing Date by the Company.
Notice of such cancellation shall be given to the Representatives in writing or
by telephone or telegraph confirmed in writing.
8. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls any Underwriter within the
meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or
otherwise insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement for the registration of the Debt Securities
as originally filed or in any amendment thereof or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, or arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
the Prospectus or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or
is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company as herein
stated by or on behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation thereof; and
provided further that such indemnity with respect to a prospectus
included in the registration statement or any amendment thereto prior
to the supplementing thereof with the Prospectus Supplement shall not
inure to the benefit of any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such loss, claim,
damage or liability purchased the Debt Securities which are the subject
thereof if such person did not receive a copy of the Prospectus as
amended or supplemented (but without the documents incorporated by
reference therein) at or prior to the confirmation of the sale of such
Debt Securities to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a material
fact contained in the Prospectus was corrected in the Prospectus as
amended or supplemented. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who
has signed the Registration Statement and each person, if any, who
controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the
Company to the Underwriters but only in relation to written information
furnished to the Company by or on behalf of such Underwriter through
the Representatives specifically for use in the preparation of the
Prospectus, and agrees to reimburse each such indemnified party for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action. This indemnity agreement will be in addition to any liability
which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party
in writing of the commencement thereof; but the omission to so notify
the indemnifying party will not relieve it from any liability which it
may have to any indemnified party otherwise than under this Section 8.
In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the
extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided, however, if the
defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party, or parties
shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of its election
so to assume the defense of such action and approval by the indemnified
party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel, approved by the
Representatives in the case of subsection (a), representing the
indemnified parties under subsection (a) or (b), as the case may be,
who are parties to such action), (ii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice
of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party; and except that, if clause (i) or
(iii) is applicable, such liability shall be only in respect of the
counsel referred to in such claims (i) or (iii). It is understood that
all such fees and expenses shall be reimbursed as they are incurred.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in
subparagraphs (a) and (b) is due in accordance with its terms but is
for any reason unavailable from the Company or the Underwriters or
insufficient to hold the Underwriters, the Company or any party covered
by the foregoing indemnification harmless in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred
to therein, the Company and the Underwriters shall contribute to the
aggregate losses, claims, damages and liabilities (or actions in
respect thereof) to which the Company and one or more of the
Underwriters may be subject, as a result of such losses, claims,
damages or liabilities (or actions in respect thereof), in such
proportion as is appropriate to reflect the relative fault of the
Company on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as well as any
other equitable considerations, including relative benefit. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or
the omission or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Underwriters
on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The 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 of the Debt
Securities (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the
Underwriters with respect to the offering of the Debt Securities, in
each case as set forth in the table on the cover page of the Prospectus
Supplement. Notwithstanding the foregoing, no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was
guilty of such fraudulent misrepresentation. The Company and the
Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by a party entitled to
contribution as a result of the losses, claims, damages or liabilities
(or actions in respect thereof) referred to above in this subsection
(d) shall be deemed to include any legal or other expenses reasonably
incurred by such party in connection with investigating or defending
any such action or claim. The Underwriters' obligation under this
subsection (d) are several in proportion to their respective
underwriting obligations and not joint. For purposes of this subsection
(d), each person, if any, who controls an Underwriter within the
meaning of either the Act or the Exchange Act, and each officer,
director and employee of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person, if any, who controls
the Company within the meaning of either the Act or the Exchange Act,
each officer, director and employee of the Company shall have the same
rights to contribution as the Company, subject to the fourth sentence
of this subsection (d).
9. Default by an Underwriter. If any one or more of the
Underwriters shall fail to purchase and pay for all of the Debt Securities
agreed to be purchased by such Underwriter or Underwriters hereunder and such
failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be
obligated severally to take up and pay for (in respective proportions which the
amount of Debt Securities set forth opposite their names in Schedule II hereto
bears to the aggregate amount of Debt Securities set forth opposite the names of
all the remaining Underwriters) the Debt Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however,
that in the event that the aggregate amount of Debt Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate amount of Debt Securities set forth in Schedule II
hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligations to purchase any of, the Debt Securities , and
if such nondefaulting Underwriters do not purchase all of the Debt Securities,
this Agreement will terminate without liability on the part of any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter, as set
forth in this Section, the Closing Date shall be postponed for such period, not
exceeding seven days, as the Representatives shall determine in order that the
required changes in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Nothing herein contained shall
relieve any defaulting Underwriter of its liability, if any, to the Company or
any nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Representations and Indemnities to Survive Delivery. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or the Company or any of their respective officers, directors or employees or
any controlling person within the meaning of the Act, and will survive delivery
of and payment for the Debt Securities.
11. Termination. This Agreement shall be subject to
termination by the Underwriters by notice given by the Representatives to the
Company prior to delivery of and payment for all Debt Securities that the
Representatives elect to terminate this Agreement on the grounds that trading in
debt securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum price shall have been established on such
Exchange, a banking moratorium shall have been declared either by Federal or New
York State authorities, or there shall have occurred any new outbreak or
material escalation of major hostilities or other calamity or crisis the effect
of which on the financial markets in the United States is such as to make it, in
the judgment of the Representatives, impracticable to sell the Debt Securities
or enforce contracts for the sale of the Debt Securities.
If this Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
except as provided in Sections 5, 8 and 10 hereof; but if for any other reason
the Debt Securities are not delivered by or on behalf of the Company as provided
herein, the Company will reimburse the Underwriters, through you, for all
out-of-pocket expenses approved in writing by you, (up to a maximum of
$__________) including fees and disbursements of counsel, reasonably incurred by
the Underwriters in making preparation for the purchase, sale and delivery of
the Debt Securities, but the Company shall then be under no further liability to
any Underwriter except as provided in Sections 5, 8 and 10 hereof.
12. Representation of the Underwriters. The Representatives
represent and warrant to the Company that they are authorized to act as the
representatives of the Underwriters in connection with this financing and that
the Representatives' execution and delivery of this Agreement and any action
under this Agreement taken by such Representatives will be binding upon all
Underwriters.
13. Notices. All communications hereunder will be in writing
and, if sent to the Representatives, shall be mailed, delivered or telegraphed
and confirmed to them at their address set forth for that purpose in Schedule I
hereto or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at High Ridge Park, P.O. Box 3801, Stamford, Connecticut 06905,
attention of Robert J. DeSantis, Vice President and Treasurer.
14. Parties in Interest. This Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company and, to the
extent provided in Section 9 and Section 10 hereof, the officers and directors
and controlling persons referred to in Section 8 hereof, and their respective
heirs, executors, administrators, successors and assigns, and no other person
shall acquire or have any right or by virtue of this Agreement. No purchaser of
any of the Debt Securities from any Underwriter shall be deemed a successor or
assign by reason merely of such purchase.
15. Applicable Law. This Agreement will be governed by
and construed in accordance with the laws of the State of New York.
16. Counterparts. This Agreement may be executed in
counterparts, all of which, taken together, shall constitute a single agreement
among the parties to such counterparts.
17. Interpretation When No Representatives. In the event no
Underwriters are named in Schedule II hereto, the term "Underwriters" shall be
deemed for all purposes of this Agreement to be the Underwriter or Underwriters
named as such in Schedule I hereto, the principal amount of the Debt Securities
to be purchased by any such Underwriter shall refer to that set opposite its
name in Schedule I hereto and all references to the "Representatives" shall be
deemed to refer to the Underwriters named in Schedule I.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
CITIZENS UTILITIES COMPANY
By__________________________________
Name: Robert J. DeSantis
Title: Vice President and Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
For themselves and as Representatives
for each of the several Underwriters
named in Schuedule II to the foregoing
Agreement.
- --------------------------------------
- --------------------------------------
By: _________________________________
By:_________________________________
Name:
Title:
SCHEDULE I
Underwriting Agreement dated _______________________
Registration Statement No. _____________
Representatives and Address:
Principal Amount of Debt Securities
to be purchased by Underwriters: $_____________
Debt Securities:
Designation: _% Debentures Due ____
Principal Amount: $_________________
Supplemental Indenture dated as of ___________________.
Date of Maturity: _____________________
Interest Rate: __% per annum, payable each
______ and __________ of each
year, commencing ______________.
Form: Book Entry
Purchase Price: __________% of the principal amount
thereof, plus accrued interest from
______________, to the date of payment
and delivery.
Sinking Fund Provisions: None
Redemption Provisions: None
Closing Date, Time and Location: ________________________
at the offices of ______________________________
______________________________
______________________________
SCHEDULE II
Principal
Amount
of Debt
Name of Underwriter Securities
$ 00,000,000
00,000,000
____________
Total................................................$000,000,000
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