EXHIBIT 1
J. B. HUNT TRANSPORT SERVICES, INC.
Medium-Term Notes Due
9 Months or More from Date of Issue
DISTRIBUTION AGREEMENT
June 13, 1995
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260-0060
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
New York, New York 10020
Stephens Inc.
111 Center Street
Little Rock, Arkansas 72201
Dear Sirs:
J. B. Hunt Transport Services, Inc., an Arkansas corporation (the
"Company"), confirms its agreement with Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated ("Merrill Lynch"), J.P. Morgan Securities
Inc. ("J.P. Morgan"), Morgan Stanley & Co. Incorporated ("Morgan Stanley") and
Stephens Inc. ("Stephens") with respect to the issue and sale by the Company of
its Medium-Term Notes described herein (the "Notes"). Merrill Lynch, J.P.
Morgan, Morgan Stanley and Stephens herein shall each be referred to as an
"Agent" and shall collectively be referred to as the "Agents". The Notes are to
be issued pursuant to indentures (each, an "Indenture", and collectively, the
"Indentures") dated as of July 1, 1993, between the Company and The First
National Bank of Chicago, as successor trustee (the "Trustee"). As of the date
hereof, the Company has authorized the issuance and sale of up to U.S.
$150,000,000 aggregate principal amount (or its equivalent, based upon the
applicable exchange rate at the time of issuance, in such foreign or composite
currencies as the Company shall designate at the time of issuance) of Notes to
or through the Agents pursuant to the
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terms of this Agreement. It is understood, however, that the Company may from
time to time authorize the issuance of additional Notes and that such additional
Notes may be sold to or through the Agents pursuant to the terms of this
Agreement, all as though the issuance of such Notes were authorized as of the
date hereof.
This Agreement provides both for the sale of Notes by the Company to
one or more Agents as principal for resale to investors and other purchasers and
for the sale of Notes by the Company directly to investors (as may from time to
time be agreed to by the Company and the related Agent or Agents), in which case
the Agents will act as agents of the Company in soliciting Note purchases.
The Company has filed with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-3 (No. 33-64950) for the registration
of debt securities, including the Notes, under the Securities Act of 1933 (the
"1933 Act") and the offering thereof from time to time in accordance with Rule
415 of the rules and regulations of the SEC under the 1933 Act (the "1933 Act
Regulations"). Such registration statement has been declared effective by the
SEC and the Indentures have been qualified under the Trust Indenture Act of 1939
(the "1939 Act"). Such registration statement (and any further registration
statements which may be filed by the Company for the purpose of registering
additional Notes and in connection with which this Agreement is included or
incorporated by reference as an exhibit) and the prospectus constituting a part
thereof, and any prospectus supplements relating to the Notes, including all
documents incorporated therein by reference, as from time to time amended or
supplemented by the filing of documents pursuant to the Securities Exchange Act
of 1934 (the "1934 Act") or the 1933 Act or otherwise, are referred to herein as
the "Registration Statement" and the "Prospectus", respectively, except that if
any revised prospectus shall be provided to the Agents by the Company for use in
connection with the offering of the Notes, whether or not such revised
prospectus is required to be filed by the Company pursuant to Rule 424(b) of the
1933 Act Regulations, the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first provided to the Agents for such
use.
SECTION 1. APPOINTMENT AS AGENTS.
(a) APPOINTMENT. Subject to the terms and conditions stated herein, the
Company hereby agrees that Notes will be sold exclusively to or through the
Agents. The Agents are authorized to engage the services of any other broker or
dealer in connection with the offer or sale of the Notes purchased by the Agents
as principal for resale to others but are not authorized to appoint sub-agents.
In connection with sales by the Agents of Notes purchased by the Agents as
principal to other brokers or dealers, the Agents may allow any portion of the
discount it has received in connection with such purchase from the Company to
such brokers or dealers. The Company agrees that, during the period the Agents
are acting as the Company's agents hereunder, unless otherwise agreed, the
Company will not appoint other agents to act on its behalf, or to assist it, in
the placement of the Notes.
(b) SALE OF NOTES. The Company shall not sell or approve the
solicitation of purchases of Notes in excess of the amount which shall be
authorized by the Company from time to time or in excess of the principal amount
of Notes registered pursuant to
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the Registration Statement. The Agents will have no responsibility for
maintaining records with respect to the aggregate principal amount of Notes
sold, or of otherwise monitoring the availability of Notes for sale, under the
Registration Statement.
(c) PURCHASES AS PRINCIPAL. The Agents shall not have any obligation to
purchase Notes from the Company as principal, but the Agents may agree from time
to time to purchase Notes as principal. Any such purchase of Notes by the Agents
as principal shall be made in accordance with Section 3(a) hereof.
(d) SOLICITATIONS AS AGENT. If agreed upon by an Agent and the Company,
such Agent, acting solely as agent for the Company and not as principal, will
solicit purchases of the Notes. Each Agent will communicate to the Company,
orally, each offer to purchase Notes solicited by such Agent on an agency basis,
other than those offers rejected by such Agent. Each Agent shall have the right,
in its discretion reasonably exercised, to reject any proposed purchase of
Notes, as a whole or in part, and any such rejection shall not be deemed a
breach of such Agent's agreement contained herein. The Company may accept or
reject any proposed purchase of Notes, in whole or in part. Each Agent shall
make reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes has been solicited by such Agent and
accepted by the Company. No Agent shall have any liability to the Company in the
event any such agency purchase is not consummated for any reason. If the Company
shall default on its obligation to deliver Notes to a purchaser whose offer it
has accepted, the Company shall (i) hold the selling Agent harmless against any
loss, claim or damage arising from or as a result of such default by the Company
and (ii) notwithstanding such default, pay to the selling Agent any commission
to which it would be entitled in connection with such sale.
(e) RELIANCE. The Company and the Agents agree that any Notes purchased
by the Agents shall be purchased, and any Notes the placement of which the
Agents arrange shall be placed by the Agents, in reliance on the
representations, warranties, covenants and agreements of the Company contained
herein and on the terms and conditions and in the manner provided herein.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to each Agent as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (whether to the Agents as principal or through the Agents as
agents), as of the date of each delivery of Notes (whether to the Agents as
principal or through the Agents as agents) (the date of each such delivery to
one or more Agents as principal being hereafter referred to as a "Settlement
Date"), and as of any time that the Registration Statement or the Prospectus
shall be amended or supplemented or there is filed with the SEC any document
incorporated by reference into the Prospectus (each of the times referenced
above being referred to herein as a "Representation Date") as follows:
(i) DUE INCORPORATION AND QUALIFICATION. The Company has been
duly incorporated and organized and is validly existing as a
corporation in good standing under the laws of the State of Arkansas
with corporate power and authority to own, lease and operate its
properties and to conduct its business as
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described in the Prospectus; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify and be in good
standing would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise.
(ii) SUBSIDIARIES. Each subsidiary of the Company which is a
significant subsidiary (each, a "Significant Subsidiary") as defined in
Rule 405 of Regulation C of the 1933 Act Regulations has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties and
conduct its business as described in the Prospectus and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify and be in
good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as
one enterprise; and all of the issued and outstanding capital stock of
each Significant Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and, except for directors'
qualifying shares, is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(iii) REGISTRATION STATEMENT AND PROSPECTUS. At the time the
Registration Statement became effective, the Registration Statement
complied, and as of each applicable Representation Date will comply, in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations and the 1939 Act and the rules and regulations of
the SEC promulgated thereunder. The Registration Statement, at the time
it became effective, did not, and at each time thereafter at which any
amendment to the Registration Statement becomes effective or any Annual
Report on Form 10-K is filed by the Company with the SEC and as of each
Representation Date, will not, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus, as of the date hereof does not, and as of each
Representation Date will not, include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; PROVIDED, HOWEVER, that the representations
and warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by any Agent expressly for use in the Registration
Statement or Prospectus.
(iv) INCORPORATED DOCUMENTS. The documents incorporated by
reference in the Prospectus, at the time they were or hereafter are
filed with the SEC,
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complied or when so filed will comply, as the case may be, in all
material respects with the requirements of the 1934 Act and the rules
and regulations promulgated thereunder (the "1934 Act Regulations")
and, when read together and with the other information in the
Prospectus, did not and will not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were or are made, not
misleading.
(v) ACCOUNTANTS. The accountants who certified the financial
statements included or incorporated by reference in the Prospectus are
independent public accountants within the meaning of the 1933 Act and
the 1933 Act Regulations.
(vi) FINANCIAL STATEMENTS. The financial statements and any
supporting schedules of the Company and its consolidated subsidiaries
included or incorporated by reference in the Registration Statement and
the Prospectus present fairly the consolidated financial position of
the Company and its consolidated subsidiaries as of the dates indicated
and the consolidated results of their operations for the periods
specified; and, except as stated therein, said financial statements
have been prepared in conformity with generally accepted accounting
principles in the United States applied on a consistent basis; and the
supporting schedules included in the Registration Statement present
fairly the information required to be stated therein.
(vii) AUTHORIZATION AND VALIDITY OF THIS AGREEMENT, THE
INDENTURES AND THE NOTES. This Agreement has been duly authorized,
executed and delivered by the Company and, upon execution and delivery
by the Agents, will be a valid and legally binding agreement of the
Company; the Indentures have been duly authorized, executed and
delivered by the Company and, upon execution and delivery by the
Trustee, will be the valid and legally binding obligations of the
Company enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting
enforcement of creditors' rights generally or by general equity
principles and except further as enforcement thereof may be limited by
(i) requirements that a claim with respect to any Notes denominated
other than in U.S. dollars (or a foreign currency or currency unit
judgment in respect of such claim) be converted into U.S. dollars at a
rate of exchange prevailing on a date determined pursuant to applicable
law or (ii) governmental authority to limit, delay or prohibit the
making of payments outside the United States; the Notes have been duly
and validly authorized for issuance, offer and sale pursuant to this
Agreement and, when issued, authenticated and delivered pursuant to the
provisions of this Agreement and the applicable Indenture against
payment of the consideration therefor specified in the Prospectus or
agreed upon pursuant to the provisions of this Agreement, the Notes
will constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting enforcement of
creditors' rights generally or by general equity principles and except
further as enforcement thereof may be limited by (i) requirements that
a claim with respect to any Notes denominated other than
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in U.S. dollars (or a foreign currency or currency unit judgment in
respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or
(ii) governmental authority to limit, delay or prohibit the making of
payments outside the United States; the Notes and the Indentures will
be substantially in the form heretofore delivered to the Agents and
conform in all material respects to all statements relating thereto
contained in the Prospectus; and each holder of Notes will be entitled
to the benefits of the applicable Indenture.
(viii) MATERIAL CHANGES OR MATERIAL TRANSACTIONS. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as may otherwise be stated therein
or contemplated thereby, (a) there has been no material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business and (b) there have been no material transactions
entered into by the Company or any of its subsidiaries other than those
in the ordinary course of business.
(ix) NO DEFAULTS; REGULATORY APPROVALS. Neither the Company
nor any of its Significant Subsidiaries is in violation of its charter
or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which it is a party or by which it or any of them or their properties
may be bound; the execution and delivery of this Agreement and the
Indentures and the consummation of the transactions contemplated herein
and therein have been duly authorized by all necessary corporate action
and will not conflict with or constitute a breach of, or default under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or any
of its subsidiaries is a party or by which it or any of them may be
bound or to which any of the property or assets of the Company or any
such subsidiary is subject, nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or
any law, administrative regulation or administrative or court order or
decree; and no consent, approval, authorization, order or decree of any
court or governmental agency or body is required for the consummation
by the Company of the transactions contemplated by this Agreement or in
connection with the sale of Notes hereunder, except such as have been
obtained or rendered, as the case may be, or as may be required under
state securities ("Blue Sky") laws.
(x) LEGAL PROCEEDINGS; CONTRACTS. Except as may be set forth
in the Registration Statement, there is no action, suit or proceeding
before or by any court or governmental agency or body, domestic or
foreign, now pending or, to the knowledge of the Company, threatened
against or affecting the Company or any of its subsidiaries, which
might, in the opinion of the Company, result in any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
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subsidiaries considered as one enterprise, or might materially and
adversely affect the properties or assets thereof or might materially
and adversely affect the consummation of this Agreement or the
Indentures or any transaction contemplated hereby or thereby; and there
are no contracts or documents of the Company or any of its subsidiaries
which are required to be filed as exhibits to the Registration
Statement by the 1933 Act or by the 1933 Act Regulations which have not
been so filed.
(xi) LICENSES. The Company owns or possesses or has obtained
all material governmental licenses, permits, consents, orders,
approvals and other authorizations necessary to lease or own, as the
case may be, and to operate its properties and to carry on its business
as presently conducted where its ownership or lease of substantial
properties or the conduct of its business requires such ownership or
possession or the obtaining of such governmental licenses, permits,
consents, orders, approvals and other authorizations and where the
failure to do so would materially adversely affect the business or
financial condition of the Company and its subsidiaries considered as
one enterprise.
(xii) INVESTMENT COMPANY ACT. The Company is not required to
be registered under the Investment Company Act of 1940, as amended (the
"1940 Act").
(xiii) DOING BUSINESS WITH CUBA. The Company has complied and
will comply with the provisions of Florida H.B. 1771, codified as
Section 517.075 of the Florida Statutes, 1987, as amended, and all
regulations promulgated thereunder relating to issuers doing business
in Cuba.
(b) ADDITIONAL CERTIFICATIONS. Any certificate signed by any director
or officer of the Company and delivered to the Agents or to counsel for the
Agents in connection with an offering of Notes through one or more of the Agents
as agent or the sale of Notes to one or more of the Agents as principal shall be
deemed a representation and warranty by the Company to such Agents as to the
matters covered thereby on the date of such certificate and at each
Representation Date subsequent thereto.
SECTION 3. PURCHASES AS PRINCIPALS; SOLICITATIONS AS AGENTS.
(a) PURCHASES AS PRINCIPALS. Unless otherwise agreed by an Agent and
the Company, Notes shall be purchased by such Agent as principal. Such purchases
shall be made in accordance with terms agreed upon by such Agent and the Company
(which terms, unless otherwise agreed, shall be agreed upon orally, with written
confirmation prepared by such Agent and mailed to the Company). Each Agent's
commitment to purchase Notes as principal shall be deemed to have been made on
the basis of the representations and warranties of the Company herein contained
and shall be subject to the terms and conditions herein set forth. Each purchase
of Notes, unless otherwise agreed, shall be at a discount from the principal
amount of each such Note equivalent to the applicable commission set forth in
Schedule A hereto. The Agents may engage the services of any other broker or
dealer in connection with the resale of the Notes purchased as principal and may
allow any portion of the discount received in connection with such purchases
from the Company to such brokers and dealers. At the time of
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each purchase of Notes by an Agent as principal, such Agent shall specify the
requirements for the stand-off agreement, officer's certificate, opinion of
counsel and comfort letter pursuant to Sections 4(k), 7(b), 7(c) and 7(d)
hereof.
(b) SOLICITATIONS AS AGENTS. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed by the Company and one or more of the Agents, such Agent or
Agents, as agents of the Company, will use its or their reasonable efforts to
solicit offers to purchase the Notes upon the terms and conditions set forth
herein and in the Prospectus. All Notes sold through the Agents as agents will
be sold at 100% of their principal amount unless otherwise agreed to by the
Company and the Agents.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through the Agents, as agents, commencing
at any time for any period of time or permanently. Upon receipt of instructions
from the Company, the Agents will forthwith suspend solicitation of purchases
from the Company until such time as the Company has advised the Agents that such
solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation made by such Agent as set
forth in Schedule A hereto.
(c) ADMINISTRATIVE PROCEDURES. The purchase price, interest rate or
formula, maturity date and other terms of the Notes (as applicable) specified in
Exhibit A hereto shall be agreed upon by the Company and the Agents and set
forth in a pricing supplement to the Prospectus to be prepared in connection
with each sale of Notes. Except as may be otherwise provided in such supplement
to the Prospectus, the Notes will be issued in denominations of U.S. $1,000 or
any larger amount that is an integral multiple of U.S. $1,000. Administrative
procedures with respect to the sale of Notes shall be agreed upon from time to
time by the Agents, the Company and the Trustee (the "Procedures"). Each Agent
and the Company agree to perform the respective duties and obligations
specifically provided to be performed by them in the Procedures.
SECTION 4. COVENANTS OF THE COMPANY.
The Company covenants with each Agent as follows:
(a) NOTICE OF CERTAIN EVENTS. The Company will notify the Agents
immediately (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the SEC for filing of any supplement to
the Prospectus or any document to be filed pursuant to the 1934 Act which will
be incorporated by reference in the Prospectus, (iii) of the receipt of any
comments from the SEC with respect to the Registration Statement or the
Prospectus, (iv) of any request by the SEC for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional
information, and (v) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose. The Company will make every reasonable effort to
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prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) NOTICE OF CERTAIN PROPOSED FILINGS. The Company will give the
Agents advance notice of its intention to file or prepare any additional
registration statement with respect to the registration of additional Notes, any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus (other than an amendment or supplement providing solely for a change
in the interest rates of Notes), whether by the filing of documents pursuant to
the 1934 Act, the 1933 Act or otherwise, and will furnish the Agents with copies
of any such amendment or supplement or other documents proposed to be filed or
prepared a reasonable time in advance of such proposed filing or preparation, as
the case may be, and will not file any such amendment or supplement or other
documents in a form to which the Agents or counsel for the Agents shall
reasonably object.
(c) COPIES OF THE REGISTRATION STATEMENT AND THE PROSPECTUS. The
Company will deliver to the Agents as many signed and conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the Agents may
reasonably request. The Company will furnish to the Agents as many copies of the
Prospectus (as amended or supplemented) as the Agents shall reasonably request
so long as the Agents are required to deliver a Prospectus in connection with
sales or solicitations of offers to purchase the Notes.
(d) PREPARATION OF PRICING SUPPLEMENTS. The Company will prepare, with
respect to any Notes to be sold through or to the Agents pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form previously
approved by the Agents and will file such Pricing Supplement pursuant to Rule
424(b)(3) under the 1933 Act not later than the close of business of the SEC on
the third business day after the date on which such Pricing Supplement is first
used.
(e) REVISIONS OF PROSPECTUS--MATERIAL CHANGES. Except as otherwise
provided in subsection (l) of this Section, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which it
is necessary, in the reasonable opinion of counsel for the Agents or counsel for
the Company, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time the Prospectus
is delivered to a purchaser, or if it shall be necessary, in the reasonable
opinion of either such counsel, to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, immediate notice shall be given, and confirmed
in writing, to the Agents to cease the solicitation of offers to purchase the
Notes in the Agents' capacity as agents and to cease sales of any Notes the
Agents may then own as principal, and the Company will promptly amend the
Registration Statement and the Prospectus, whether by filing documents pursuant
to the 1934 Act, the 1933 Act or otherwise, as may be necessary to correct such
untrue statement or omission or to make the Registration Statement and
Prospectus comply with such requirements.
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(f) PROSPECTUS REVISIONS--PERIODIC FINANCIAL INFORMATION. Except as
otherwise provided in subsection (l) of this Section, on or prior to the date on
which there shall be released to the general public interim financial statement
information related to the Company with respect to each of the first three
quarters of any fiscal year or preliminary financial statement information with
respect to any fiscal year, the Company shall furnish such information to the
Agents, confirmed in writing, and shall cause the Prospectus to be amended or
supplemented to include or incorporate by reference financial information with
respect thereto and corresponding information for the comparable period of the
preceding fiscal year, as well as such other information and explanations as
shall be necessary for an understanding thereof or as shall be required by the
1933 Act or the 1933 Act Regulations.
(g) PROSPECTUS REVISIONS--AUDITED FINANCIAL INFORMATION. Except as
otherwise provided in subsection (l) of this Section, on or prior to the date on
which there shall be released to the general public financial information
included in or derived from the audited financial statements of the Company for
the preceding fiscal year, the Company shall cause the Registration Statement
and the Prospectus to be amended, whether by the filing of documents pursuant to
the 1934 Act, the 1933 Act or otherwise, to include or incorporate by reference
such audited financial statements and the report or reports, and consent or
consents to such inclusion or incorporation by reference, of the independent
accountants with respect thereto, as well as such other information and
explanations as shall be necessary for an understanding of such financial
statements or as shall be required by the 1933 Act or the 1933 Act Regulations.
(h) EARNINGS STATEMENTS. The Company will make generally available to
its security holders as soon as practicable, but not later than 90 days after
the close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 under the 1933 Act) covering each
twelve month period beginning, in each case, not later than the first day of the
Company's fiscal quarter next following the "effective date" (as defined in such
Rule 158) of the Registration Statement with respect to each sale of Notes.
(i) BLUE SKY QUALIFICATIONS. The Company will endeavor, in cooperation
with the Agents, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Agents may designate, and will maintain such qualifications in effect for as
long as may be required for the distribution of the Notes; provided, however,
that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation in any jurisdiction in which
it is not so qualified. The Company will file such statements and reports as may
be required by the laws of each jurisdiction in which the Notes have been
qualified as above provided. The Company will promptly advise the Agents of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any such state or jurisdiction or the
initiating or threatening of any proceeding for such purpose.
(j) 1934 ACT FILINGS. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the 1934 Act.
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(k) STAND-OFF AGREEMENT. If specified by an Agent in connection with a
purchase by it of Notes as principal, between the date of the agreement to
purchase such Notes and the Settlement Date with respect to such purchase, the
Company will not, without such Agent's prior written consent, offer or sell, or
enter into any agreement to sell, any debt securities of the Company (other than
the Notes that are to be sold pursuant to such agreement and commercial paper in
the ordinary course of business).
(l) SUSPENSION OF CERTAIN OBLIGATIONS. The Company shall not be
required to comply with the provisions of subsections (e), (f) or (g) of this
Section during any period from the time (i) the Agents shall have suspended
solicitation of purchases of the Notes in their capacity as agents pursuant to a
request from the Company and (ii) the Agents shall not then hold any Notes
purchased as principal pursuant hereto, until the time the Company shall
determine that solicitation of purchases of the Notes should be resumed or the
Agents shall subsequently purchase Notes from the Company as principal.
SECTION 5. CONDITIONS OF OBLIGATIONS.
The obligations of the Agents to purchase Notes as principal and to
solicit offers to purchase the Notes as agents of the Company, and the
obligations of any purchasers of the Notes sold through the Agents as agents,
will be subject to the accuracy of the representations and warranties on the
part of the Company herein and to the accuracy of the statements of the
Company's officers made in any certificate furnished pursuant to the provisions
hereof, to the performance and observance by the Company of all its covenants
and agreements herein contained and to the following additional conditions
precedent:
(a) LEGAL OPINIONS. On the date hereof, the Agents shall have received
the following legal opinions, dated as of the date hereof and in form and
substance satisfactory to the Agents:
(1) OPINION OF COMPANY COUNSEL. The opinion of Wright, Lindsey
& Jennings, counsel to the Company, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Arkansas.
(ii) The Company has corporate power and authority to
own, lease and operate its properties and to conduct its
business as described in the Registration Statement.
(iii) Each Significant Subsidiary of the Company has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and conduct
its business as described in the Registration Statement; and
all of the issued and outstanding capital stock of each such
Significant Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable, and,
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except for directors' qualifying shares, is owned by the
Company, free and clear of any mortgage, pledge, lien,
encumbrance, claim or equity.
(iv) This Agreement has been duly and validly
authorized, executed and delivered by the Company.
(v) The Indentures have been duly and validly
authorized, executed and delivered by the Company and
(assuming the Indentures have been duly authorized, executed
and delivered by the Trustee) constitute legal, valid and
binding agreements of the Company, enforceable in accordance
with their terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting enforcement of creditors' rights
generally, or by general equity principles, and except further
as enforcement thereof may be limited by (A) requirements that
a claim with respect to any Notes denominated other than in
U.S. dollars (or a foreign currency or foreign currency unit
judgment in respect of such claim) be converted into United
States dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental
authority to limit, delay or prohibit the making of payments
in foreign currency or currency units or payments outside the
United States.
(vi) The Notes, in the form(s) certified by the
Company as of the date hereof, have been duly authorized for
issuance, offer and sale pursuant to this Agreement and, when
issued, authenticated and delivered pursuant to the provisions
of this Agreement and the applicable Indenture against payment
of the consideration therefor, will constitute valid and
legally binding obligations of the Company, enforceable in
accordance with their terms except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting enforcement
of creditors' rights generally, or by general equity
principles, and except further as enforcement thereof may be
limited by (A) requirements that a claim with respect to any
Notes denominated other than in U.S. dollars (or a foreign
currency or foreign currency unit judgment in respect of such
claim) be converted into United States dollars at a rate of
exchange prevailing on a date determined pursuant to
applicable law or (B) governmental authority to limit, delay
or prohibit the making of payments in foreign currency or
currency units or payments outside the United States; and each
holder of Notes will be entitled to the benefits of the
applicable Indenture.
(vii) The statements in the Prospectus under the
captions "Description of Debt Securities" and "Description of
Notes," insofar as they purport to summarize certain
provisions of documents specifically referred to therein, are
accurate summaries of such provisions.
(viii) The Indentures are qualified under the 1939
Act.
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(ix) The Registration Statement is effective under
the 1933 Act and, to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the SEC.
(x) At the time the Registration Statement became
effective, the Registration Statement complied as to form in
all material respects with the requirements of the 1933 Act,
the 1939 Act and the regulations under each of those Acts.
(xi) The execution and delivery of this Agreement or
of the Indentures, or the consummation by the Company of the
transactions contemplated herein and therein have been duly
authorized by all necessary corporate action and will not
conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
of its Significant Subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument known to such counsel and to which the Company or
any such subsidiary is a party or by which it or any of them
may be bound or to which any of the property or assets of the
Company or any such subsidiary is subject, or any law,
administrative regulation or administrative or court decree
known to such counsel to be applicable to the Company of any
court or governmental agency, authority or body or any
arbitrator having jurisdiction over the Company; nor will such
action result in any violation of the provisions of the
charter or by-laws of the Company.
(xii) To the best of such counsel's knowledge, there
are no contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments or documents required to be
described or referred to in the Registration Statement or to
be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as
exhibits thereto.
(xiii) No consent, approval, authorization, order or
decree of any court or governmental agency or body (including
the SEC) is required for the consummation by the Company of
the transactions contemplated by this Agreement or in
connection with the sale of Notes hereunder, except such as
have been obtained or rendered, as the case may be, or as may
be required under the state securities laws.
(xiv) Each document filed pursuant to the 1934 Act
and incorporated by reference in the Prospectus complied when
filed as to form in all material respects with the 1934 Act
and the 1934 Act Regulations thereunder.
(xv) The information contained in the Prospectus
under the caption "Certain Federal Income Tax Consequences"
and under the caption "Business-Regulation" in the Company's
Annual Report on
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Form 10-K for the year ended December 31, 1994, to the extent
that it constitutes matters of law or legal conclusions, has
been reviewed by such counsel and is correct.
(2) OPINION OF COUNSEL TO THE AGENTS. The opinion of Fulbright
& Jaworski L.L.P., counsel to the Agents, covering the matters referred
to in subparagraph (1) under the subheadings (iv) to (x), inclusive,
above. In giving such opinions, such counsel may rely upon the opinion
of Wright, Lindsey & Jennings insofar as matters governed by the law of
the State of Arkansas are concerned.
(3) In giving their opinions required by subsection (a)(1) and
(a)(2) of this Section, Wright Lindsey & Jennings and Fulbright &
Jaworski L.L.P. shall each additionally state that nothing has come to
their attention that would lead them to believe that the Registration
Statement, at the time it became effective or, if an amendment to the
Registration Statement or an Annual Report on Form 10-K has been filed
by the Company with the SEC subsequent to the effectiveness of the
Registration Statement, then at the time such amendment became
effective or at the time of the most recent such filing, as the case
may be, or at the date hereof, contained or contains an untrue
statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading or that the Prospectus, as amended or
supplemented at the date hereof, or (if such opinion is being delivered
in connection with the purchase of Notes by the Agents as principal
pursuant to Section 7(c) hereof) at the date of any agreement by the
Agents to purchase Notes as principal and at the Settlement Date with
respect thereto, as the case may be, included or includes an untrue
statement of a material fact or omitted or omits 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.
(b) OFFICER'S CERTIFICATE. At the date hereof, the Agents shall have
received a certificate of the President or Vice President and the chief
financial or chief accounting officer of the Company, substantially in the form
of Appendix III hereto and dated as of the date hereof, to the effect that (i)
since the respective dates as of which information is given in the Registration
Statement and the Prospectus or since the date of any agreement by the Agents to
purchase Notes as principal, there has not been any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, (ii) the
other representations and warranties of the Company contained in Section 2
hereof are true and correct with the same force and effect as though expressly
made at and as of the date of such certificate, (iii) the Company has performed
or complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the date of such certificate, and (iv)
that no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been initiated or
threatened by the SEC.
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(c) COMFORT LETTER. On the date hereof, the Agents shall have received
a letter from KPMG Peat Marwick LLP, dated as of the date hereof and in form and
substance satisfactory to the Agents, to the effect that:
(i) They are independent public accountants with respect to
the Company and its subsidiaries within the meaning of the 1933 Act and
the 1933 Act Regulations.
(ii) In their opinion, the consolidated financial statements
and supporting schedule(s) of the Company and its subsidiaries examined
by them and included or incorporated by reference in the Registration
Statement comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations with respect to registration statements on Form S-3 and the
1934 Act and the 1934 Act Regulations.
(iii) They have performed specified procedures, not
constituting an audit, including a reading of the latest available
interim financial statements of the Company and its indicated
subsidiaries, a reading of the minute books of the Company and such
subsidiaries since the end of the most recent fiscal year with respect
to which an audit report has been issued, inquiries of and discussions
with certain officials of the Company and such subsidiaries responsible
for financial and accounting matters with respect to the unaudited
consolidated financial statements included or incorporated by reference
in the Registration Statement and Prospectus and the latest available
interim unaudited financial statements of the Company and its
subsidiaries, and such other inquiries and procedures as may be
specified in such letter, and on the basis of such inquiries and
procedures nothing came to their attention that caused them to believe
that: (A) the unaudited consolidated financial statements of the
Company and its subsidiaries included or incorporated by reference in
the Registration Statement and Prospectus do not comply as to form in
all material respects with the applicable accounting requirements of
the 1934 Act and the 1934 Act Regulations or were not presented in
conformity with generally accepted accounting principles in the United
States applied on a basis substantially consistent with that of the
audited financial statements included or incorporated by reference
therein, or (B) at a specified date not more than five days prior to
the date of such letter, there was any change in the consolidated
capital stock or any increase in consolidated long-term debt of the
Company and its subsidiaries or any decrease in the consolidated net
assets of the Company and its subsidiaries, in each case as compared
with the amounts shown on the most recent consolidated balance sheet of
the Company and its subsidiaries included or incorporated by reference
in the Registration Statement and Prospectus or, during the period from
the date of such balance sheet to a specified date not more than five
days prior to the date of such letter, there were any decreases, as
compared with the corresponding period in the preceding year, in
consolidated revenues or net income of the Company and its
subsidiaries, except in each such case as set forth in or contemplated
by the Registration Statement and Prospectus or except for such
exceptions enumerated in such letter as shall have been agreed to by
the Agents and the Company.
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(iv) In addition to the examination referred to in their
report included or incorporated by reference in the Registration
Statement and the Prospectus, and the limited procedures referred to in
clause (iii) above, they have carried out certain other specified
procedures, not constituting an audit, with respect to certain amounts,
percentages and financial information which are included or
incorporated by reference in the Registration Statement and Prospectus
and which are specified by the Agents, and have found such amounts,
percentages and financial information to be in agreement with the
relevant accounting, financial and other records of the Company and its
subsidiaries identified in such letter.
(d) OTHER DOCUMENTS. On the date hereof and on each Settlement Date,
counsel to the Agents shall have been furnished with such documents and opinions
as such counsel may reasonably require for the purpose of enabling such counsel
to pass upon the issuance and sale of Notes as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of Notes as herein contemplated shall be satisfactory in
form and substance to the Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement (or, at the
option of the Agents, any applicable agreement by the Agents to purchase Notes
as principal) may be terminated by the Agents by notice to the Company at any
time and any such termination shall be without liability of any party to any
other party, except that the covenant regarding provision of an earnings
statement set forth in Section 4(h) hereof, the provisions concerning payment of
expenses under Section 10 hereof, the indemnity and contribution agreement set
forth in Sections 8 and 9 hereof, the provisions concerning the representations,
warranties and agreements to survive delivery of Section 11 hereof, the
provisions relating to governing law set forth in Section 14 and the provisions
set forth under "Parties" of Section 15 hereof shall remain in effect.
SECTION 6. DELIVERY OF AND PAYMENT FOR NOTES SOLD THROUGH THE AGENTS.
Delivery of Notes sold through the Agents as agents shall be made by
the Company to the Agents for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the applicable Agent shall promptly notify the Company and
deliver the Note to the Company, and, if such Agent has theretofore paid the
Company for such Note, the Company will promptly return such funds to such
Agent. If such failure occurred for any reason other than default by such Agent
in the performance of its obligations hereunder, the Company will reimburse such
Agent on an equitable basis for its loss of the use of the funds for the period
such funds were credited to the Company's account.
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SECTION 7. ADDITIONAL COVENANTS OF THE COMPANY.
The Company covenants and agrees with the Agents that:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each acceptance by
it of an offer for the purchase of Notes (whether to the Agents as principal or
through the Agents as agents), and each delivery of Notes to one or more Agents
(whether to the Agents as principals or through the Agents as agents), shall be
deemed to be an affirmation that the representations and warranties of the
Company contained in this Agreement and in any certificate theretofore delivered
to the Agents pursuant hereto are true and correct at the time of such
acceptance or sale, as the case may be, and an undertaking that such
representations and warranties will be true and correct at the time of delivery
to the purchaser or its agent, or to the Agents, of the Note or Notes relating
to such acceptance or sale, as the case may be, as though made at and as of each
such time (and it is understood that such representations and warranties shall
relate to the Registration Statement and Prospectus as amended and supplemented
to each such time).
(b) SUBSEQUENT DELIVERY OF CERTIFICATES. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for a change in the interest
rates of Notes or similar changes, and, unless the Agents shall otherwise
specify, other than by an amendment or supplement which relates exclusively to
an offering of debt securities other than the Notes), (ii) there is filed with
the SEC any document incorporated by reference into the Prospectus (other than
any Current Report on Form 8-K relating exclusively to the issuance of debt
securities under the Registration Statement, unless the Agents shall otherwise
specify), (iii) (if required in connection with the purchase of Notes by the
Agents as principal) the Company sells Notes to the Agents as principal or (iv)
the Company issues and sells Notes in a form not previously certified to the
Agents by the Company, the Company shall furnish or cause to be furnished to the
Agents forthwith a certificate dated the date of filing with the SEC of such
supplement or document, the date of effectiveness of such amendment, or the date
of such sale, as the case may be, in form satisfactory to the Agents to the
effect that the statements contained in the certificate referred to in Section
5(b) hereof which were last furnished to the Agents are true and correct at the
time of such amendment, supplement, filing or sale, as the case may be, as
though made at and as of such time (except that such statements shall be deemed
to relate to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, a certificate of the
same tenor as the certificate referred to in said Section 5(b), modified as
necessary to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such certificate.
(c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for a change in the interest
rates of the Notes or similar changes or solely for the inclusion of additional
financial information, and, unless the Agents shall otherwise specify, other
than by an amendment or supplement which relates exclusively to an offering of
debt securities other than the Notes), (ii) there is filed with the SEC any
document incorporated by reference into the
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Prospectus (other than any Current Report on Form 8-K, unless the Agents shall
otherwise specify), (iii) (if required in connection with the purchase of Notes
by the Agents as principal) the Company sells Notes to the Agents as principal
or (iv) the Company issues and sells Notes in a form not previously certified to
the Agents by the Company, the Company shall furnish or cause to be furnished
forthwith to the Agents and to counsel to the Agents a written opinion of
Wright, Lindsey & Jennings, counsel to the Company, or other counsel
satisfactory to the Agents dated the date of filing with the SEC of such
supplement or document, the date of effectiveness of such amendment, or the date
of such sale, as the case may be, in form and substance satisfactory to the
Agents, of the same tenor as the opinion referred to in Section 5(a)(1) hereof,
but modified, as necessary, to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such opinion;
or, in lieu of such opinion, counsel last furnishing such opinion to the Agents
shall furnish the Agents with a letter to the effect that the Agents may rely on
such last opinion to the same extent as though it was dated the date of such
letter authorizing reliance (except that statements in such last opinion shall
be deemed to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such letter authorizing reliance).
(d) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information or there is filed with the SEC any
document incorporated by reference into the Prospectus which contains additional
financial information, or (ii) (if required in connection with the purchase of
Notes by the Agents as principal) the Company sells Notes to the Agents as
principal, the Company shall cause KPMG Peat Marwick LLP forthwith to furnish
the Agents a letter, dated the date of effectiveness of such amendment,
supplement or document with the SEC, or the date of such sale, as the case may
be, in form satisfactory to the Agents, of the same tenor as the portions of the
letter referred to in clauses (i) and (ii) of Section 5(c) hereof but modified
to relate to the Registration Statement and Prospectus, as amended and
supplemented to the date of such letter, and of the same general tenor as the
portions of the letter referred to in clauses (iii) and (iv) of said Section
5(c) with such changes as may be necessary to reflect changes in the financial
statements and other information derived from the accounting records of the
Company.
SECTION 8. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE AGENTS. The Company agrees to indemnify and
hold harmless each Agent and each person, if any, who controls each Agent within
the meaning of Section 15 of the 1933 Act as follows:
(1) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
the Prospectus (or any amendment or supplement thereto) or the omission
or alleged omission therefrom of a material fact necessary to make the
statements
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therein, in the light of the circumstances under which they were made,
not misleading, unless such untrue statement or omission or such
alleged untrue statement or omission was made in reliance upon and in
conformity with written information furnished to the Company by any
Agent expressly for use in the Registration Statement or the
Prospectus;
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(3) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by an Agent),
reasonably incurred in investigating, preparing or defending against
any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above.
(b) INDEMNIFICATION OF COMPANY. Each Agent severally agrees to
indemnify and hold harmless the Company, its directors, each of its officers who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by any Agent expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto).
(c) GENERAL. Each indemnified party shall give prompt written notice to
each indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such action. In no
event shall the indemnifying parties be liable for the fees and expenses of more
than one counsel (in addition to any local counsel) for all indemnified parties
in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
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SECTION 9. CONTRIBUTION.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8 hereof
is for any reason held to be unavailable to or insufficient to hold harmless the
indemnified parties although applicable in accordance with its terms, the
Company and the Agents shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said indemnity
agreement incurred by the Company and the Agents, as incurred, in such
proportions that each Agent is responsible for that portion represented by the
percentage that the total commissions and underwriting discounts received by
such Agent to the date of such liability bears to the total sales price from the
sale of Notes sold to or through such Agent to the date of such liability, and
the Company is responsible for the balance; PROVIDED, HOWEVER, that no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section, each
person, if any, who controls an Agent within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as an Agent, and each
director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act shall have the same rights to contribution as the
Company.
SECTION 10. PAYMENT OF EXPENSES.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement and all
amendments thereto and the Prospectus and any amendments or supplements thereto;
(b) The preparation, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the use of book-entry notes;
(d) The fees and disbursements of the Company's accountants and
counsel, of the Trustee and its counsel, and of any Calculation Agent or
Exchange Rate Agent;
(e) The reasonable fees and disbursements of counsel to the Agents
incurred in connection with the establishment of the program relating to the
Notes and incurred from time to time in connection with the transactions
contemplated hereby;
(f) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(i) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Agents in connection
therewith and in connection with the preparation of any Blue Sky Survey and any
Legal Investment Survey;
(g) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and any amendments
thereto, and of the
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Prospectus and any amendments or supplements thereto, and the delivery by the
Agents of the Prospectus and any amendments or supplements thereto in connection
with solicitations or confirmations of sales of the Notes;
(h) The preparation, printing, reproducing and delivery to the Agents
of copies of the Indenture and all supplements and amendments thereto;
(i) Any fees charged by rating agencies for the rating of the Notes;
(j) The fees and expenses incurred in connection with the listing of
the Notes on any securities exchange;
(k) The fees and expenses, if any, incurred with respect to any filing
with the National Association of Securities Dealers, Inc.;
(l) Any advertising and other out-of-pocket expenses of the Agents
incurred with the approval of the Company;
(m) The cost of providing any CUSIP or other identification numbers for
the Notes; and
(n) The fees and expenses of any Depositary (as defined in the
Indentures) and any nominees thereof in connection with the Notes.
SECTION 11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted pursuant
hereto or thereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Agents or any
controlling person of the Agents, or by or on behalf of the Company, and shall
survive each delivery of and payment for any of the Notes.
SECTION 12. TERMINATION.
(a) TERMINATION OF THIS AGREEMENT. This Agreement (excluding any
agreement hereunder by the Agents to purchase Notes as principal) may be
terminated for any reason, at any time by either the Company or the Agents upon
the giving of 30 days' written notice of such termination to the other party
hereto; provided, however, that the termination of this Agreement by an Agent
shall terminate this Agreement only between such Agent and the Company and the
Company's notice of termination as to any one Agent shall terminate this
Agreement only between itself and such Agent.
(b) TERMINATION OF AGREEMENT TO PURCHASE NOTES AS PRINCIPAL. The Agents
may terminate any agreement hereunder by the Agents to purchase Notes as
principal, immediately upon notice to the Company, at any time prior to the
Settlement Date relating thereto (i) if there has been, since the date of such
agreement or since the respective dates as of which information is given in the
Registration Statement, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered
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as one enterprise, whether or not arising in the ordinary course of business, or
(ii) if there shall have occurred any material adverse change in the financial
markets in the United States or any outbreak or escalation of hostilities or
other national or international calamity or crisis the effect of which is such
as to make it, in the judgment of the Agents, impracticable to market the Notes
or enforce contracts for the sale of the Notes, or (iii) if trading in any
securities of the Company has been suspended by the SEC or a national securities
exchange, or if trading generally on either the American Stock Exchange or the
New York Stock Exchange shall have been suspended, or minimum or maximum prices
for trading have been fixed (excluding program trading limits), or maximum
ranges for prices for securities have been required, by either of said exchanges
or by order of the SEC or any other governmental authority, or if a banking
moratorium shall have been declared by either Federal, New York or Arkansas
authorities or if a banking moratorium shall have been declared by the relevant
authorities in the country or countries of origin of any foreign currency or
currencies in which the Notes are denominated or payable, or (iv) if the rating
assigned by any nationally recognized securities rating agency to any debt
securities of the Company as of the date of any applicable principal purchase
shall have been lowered since that date or if any such rating agency shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any debt securities of the Company, or (v)
if there shall have come to the Agents' attention any facts that would cause the
Agents to believe that the Prospectus, at the time it was required to be
delivered to a purchaser of Notes, included an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at the time of such
delivery, not misleading.
(c) GENERAL. In the event of any such termination, neither party will
have any liability to the other party hereto, except that (i) the Agents shall
be entitled to any commission earned in accordance with the third paragraph of
Section 3(b) hereof, (ii) if at the time of termination (a) the Agents shall own
any Notes purchased by them as principal with the intention of reselling them or
(b) an offer to purchase any of the Notes has been accepted by the Company but
the time of delivery to the purchaser or his agent of the Note or Notes relating
thereto has not occurred, the covenants set forth in Sections 4 and 7 hereof
shall remain in effect until such Notes are so resold or delivered, as the case
may be, and (iii) the covenant set forth in Section 4(h) hereof, the provisions
of Section 10 hereof, the indemnity and contribution agreements set forth in
Sections 8 and 9 hereof, and the provisions of Sections 11, 14 and 15 hereof
shall remain in effect.
SECTION 13. NOTICES.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
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If to the Company:
J. B. Hunt Transport Services, Inc.
615 J. B. Hunt Corporate Drive
Lowell, Arkansas 72745
Attention: James T. Schnoes
Fax: (501) 820-8896
If to Merrill Lynch:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower--10th Floor
World Financial Center
New York, New York 10281-1310
Attention: MTN Product Management
Fax: (212) 449-2234
If to J.P. Morgan:
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260-0060
Attention: Medium Term Note Desk
Fax: (212) 648-5907
If to Morgan Stanley:
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas, 4th Floor
New York, New York 10020
Attention: Manager-Continuously Offered Products
Fax: (212) 764-7490
Copy to:
Morgan Stanley & Co. Incorporated
1251 Avenue of the Americas, 28th Floor
New York, New York 10020
Attention: Peter Cooper-Investment Banking Information Center
Fax: (212) 703-6476
-23-
If to Stephens:
Stephens Inc.
111 Center Street
Little Rock, Arkansas 72201
Attention: Syndicate, Michael R. Smith
Fax: (501) 377-2404
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. GOVERNING LAW; FORUM.
This Agreement and all the rights and obligations of the parties shall
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in such State. Any suit,
action or proceeding brought by the Company against the Agents in connection
with or arising under this Agreement shall be brought solely in the state or
federal court of appropriate jurisdiction located in the Borough of Manhattan,
The City of New York.
SECTION 15. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the
Agents and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 8 and 9 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and their respective successors and said controlling persons and officers
and directors and their heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of Notes shall be deemed to
be a successor by reason merely of such purchase.
-24-
If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
between the Agents and the Company in accordance with its terms.
Very truly yours,
J. B. HUNT TRANSPORT SERVICES, INC.
By /s/ JERRY W. WALTON
Name: JERRY W. WALTON
Title: EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
J. B. HUNT TRANSPORT SERVICES, INC.
By /s/ WAYNE GARRISON
Name: WAYNE GARRISON
Title: CHAIRMAN OF THE BOARD
Accepted:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By /s/ SCOTT G. PRIMROSE
Name: SCOTT G. PRIMROSE
Title: AUTHORIZED SIGNATORY
J.P. Morgan Securities Inc.
By /s/ THOMAS HAGERSTROM
Name: THOMAS HAGERSTROM
Title: VICE PRESIDENT
Morgan Stanley & Co. Incorporated
By /s WILLIAM WHITE
Name: WILLIAM WHITE
Title: PRINCIPAL
Stephens Inc.
By /d/ E. H. CLEMMONS
Name: E. H. CLEMMONS
Title: VICE PRESIDENT
-25-
EXHIBIT A
The following terms, if applicable, shall be agreed to by the Agents
and the Company in connection with each sale of Notes:
Principal Amount: $______
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Spread or Spread Multiplier, if any:
Interest Reset Date(s):
Interest Payment Date(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Reset Period:
Interest Payment Period:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
If Repayable:
Optional Repayment Date(s):
Date of Maturity:
Purchase Price: ___%
Settlement Date and Time:
Currency of Denomination:
Denominations (if currency is other than U.S. dollar):
Currency of Payment:
Additional Terms:
Also, in connection with the purchase of Notes by the Agents as principal,
agreement as to whether the following will be required:
Officer's Certificate pursuant to Section 7(b) of the Distribution
Agreement. Legal Opinion pursuant to Section 7(c) of the Distribution
Agreement. Comfort Letter pursuant to Section 7(d) of the Distribution
Agreement. Stand-off Agreement pursuant to Section 4(k) of the
Distribution Agreement.
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SCHEDULE A
As compensation for the services of the Agents hereunder, the Company
shall pay the applicable Agent, on a discount basis, a commission for the sale
of each Note equal to the principal amount of such Note multiplied by the
appropriate percentage set forth below:
PERCENT
OF
PRINCIPAL
MATURITY RANGES AMOUNT
From 9 months to less than 1 year ............................. .125%
From 1 year to less than 18 months ............................ .150
From 18 months to less than 2 years ........................... .200
From 2 years to less than 3 years ............................. .250
From 3 years to less than 4 years ............................. .350
From 4 years to less than 5 years ............................. .450
From 5 years to less than 6 years ............................. .500
From 6 years to less than 7 years ............................. .550
From 7 years to less than 10 years ............................ .600
From 10 years to less than 15 years ........................... .625
From 15 years to less than 20 years ........................... .700
From 20 years to 30 years ..................................... .750
Greater than 30 years ......................................... *
* As agreed to by the Company and the applicable Agent at the time of sale.
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APPENDIX III
J. B. HUNT TRANSPORT SERVICES, INC.
Officers' Certificate
The undersigned, _____________________ and ___________________, the
duly elected, qualified and acting (a) [President or Vice President] and (b)
[chief financial officer or chief accounting officer], respectively, of J. B.
Hunt Transport Services, Inc., an Arkansas corporation (the "Company"), hereby
certify that:
1. Since the respective dates as of which information is given in the
Registration Statement and the Prospectus or since the date of any agreement by
the Agents to purchase Notes as principal, there has not been any material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business.
2. The representations and warranties of the Company contained in
Section 2 of the Distribution Agreement dated June 13, 1995 (the "Distribution
Agreement"), by and among the Company, Merrill Lynch & Co., Merrill Lynch,
Pierce Fenner & Smith Incorporated, J.P. Morgan Securities Inc., Morgan Stanley
& Co. Incorporated and Stephens Inc. are true and correct with the same force
and effect as though expressly made at and as of the date hereof.
3. The Company has performed or complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
the date hereof.
4. No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or threatened by the SEC.
All capitalized terms used herein that are not otherwise defined herein
shall have the meanings given such terms in the Distribution Agreement.
IN WITNESS WHEREOF, the undersigned have hereunto signed this
Certificate this 13th day of June, 1995.
____________________________________
____________________________________
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