Exhibit 1-1
ENERGY EAST CORPORATION
$_________ ___% SENIOR DEBT SECURITIES
UNDERWRITING AGREEMENT
[Insert Date]
[Name of Representatives]
for themselves and as Representatives for the Underwriters
named in Schedule A, attached hereto
[Name and Address of Representatives]
Ladies and Gentlemen:
1. Energy East Corporation, a corporation duly organized and existing
under the laws of the State of New York (the "Company"), proposes to issue and
sell $___________ of ___% Senior Debt Securities, due _______ (the
"Securities"). The Company hereby agrees with [Name of Representatives]
(together, the "Representatives"), and each of the other Underwriters named in
Schedule A hereto (collectively, including the Representatives, the
"Underwriters," which term shall also include any underwriter substituted as
hereinafter provided in Section 9 hereof) as follows:
2. Any discretion to be exercised with respect to this Agreement
will be exercised jointly by ______ and ______ as [joint book-running managers].
The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-62056)
as amended by Pre-Effective Amendment No. 1 (the "Registration
Statement," which term shall include all exhibits thereto and the
documents incorporated by reference in the prospectus contained
therein) in respect of the Securities and certain other securities
of the Company has been filed with the Securities and Exchange
Commission (the "Commission"); the Registration Statement, in the
form heretofore delivered or to be delivered to the Underwriters has
been declared effective by the Commission in such form; no other
document with respect to the Registration Statement or document
incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission; and no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been initiated or
threatened by the Commission (the term "Base Prospectus" means the
base prospectus relating to the Securities and other securities
included in the Registration Statement; the term "Prospectus" means
the Base Prospectus supplemented by a prospectus supplement
("Prospectus Supplement") relating specifically to the
Securities filed with the Commission pursuant to Rule 424(b) under
the Securities Act of 1933, as amended (the "Act"); the term
"Preliminary Prospectus" means a preliminary prospectus supplement
specifically relating to the Securities together with the Base
Prospectus; any reference herein to any Base Prospectus, Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Base
Prospectus, Preliminary Prospectus or Prospectus, as the case may
be; any reference to any amendment or supplement shall be deemed to
refer to and include any documents filed after the date of such Base
Prospectus under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and incorporated by reference in such Base
Prospectus; any reference to the Registration Statement shall be
deemed to refer to and include any document filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective date
of the Registration Statement that is incorporated by reference in
the Registration Statement;
(b) Except for the order of the Commission with respect to the
effectiveness of the Registration Statement referred to in paragraph
(a) above, no consent, approval, authorization, order, registration or
qualification of or with any federal or state commission, court or
governmental agency or body is required for the issue and sale of the
Securities or the consummation by the Company of the transactions
contemplated by this Agreement or the indenture, dated as of August 31,
2000 between the Company and The Chase Manhattan Bank, as trustee, as
supplemented and as to be further supplemented by a supplemental
indenture relating to the Securities (the indenture, as supplemented,
the "Indenture"), except such approvals as have been, or will have
been, prior to the Time of Delivery, obtained under the Act, the Public
Utility Holding Company Act of 1935 (the "Holding Company Act") and
such consents, approvals, authorizations, orders, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Securities
by the Underwriters; and a copy of the order heretofore entered by the
Commission with respect to the effectiveness of the Registration
Statement has been or will be delivered to Underwriters;
(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, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement
of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder and will not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; PROVIDED, HOWEVER, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the
Company by any Underwriter of the Securities expressly for use in
the Prospectus as amended or supplemented;
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(d) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939 (the "Trust
Indenture Act") and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date
as to the Registration Statement and any amendment thereto and as of
the applicable filing date and the Time of Delivery as to the
Prospectus and any amendment or supplement thereto, 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; PROVIDED, HOWEVER, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by any Underwriter of the Securities expressly for use in the
Prospectus as amended or supplemented;
(e) The consolidated financial statements filed with or as part
of the Registration Statement present fairly the financial position,
results of operations and changes in financial position of the Company
and its subsidiaries at the dates and for the periods indicated, all in
conformity with generally accepted accounting principles; and the
Company has no material contingent obligation which is not disclosed in
the Registration Statement and the Prospectus;
(f) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, which would
result in any material adverse change, or any development involving a
prospective material adverse change in or affecting the general
affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, taken as a
whole, otherwise than as set forth or contemplated in the Prospectus;
and, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any
change in the capital stock (other than pursuant to the Company's
common stock repurchase program, or its dividend reinvestment and other
common stock plans) or long-term debt of the Company or any of its
Significant Subsidiaries, as that term is defined in Rule 1-02 of
Regulation S-X of the Rules and Regulations, or any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus;
(g) 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, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or
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leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
(h) Each Significant Subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the power
and authority (corporate and other) to own its property and to conduct
its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole;
except as described in the Registration Statement and the Prospectus,
each Significant Subsidiary of the Company holds all material licenses,
certificates and permits from governmental authorities necessary for
the conduct of its business;
(i) The Company has an authorized capitalization as set forth in
the Prospectus as amended or supplemented, and all of the issued shares
of capital stock of the Company have been duly and validly authorized
and issued and are fully paid and non-assessable;
(j) The Securities have been duly authorized, and, when duly
executed, authenticated, issued and delivered, will constitute valid
and legally binding obligations of the Company entitled to the benefits
provided by the Indenture; the Indenture has been duly authorized and
duly qualified under the Trust Indenture Act and, at the Time of
Delivery (as defined in Section 4 hereof), the Indenture will
constitute a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other
laws or judicial decisions of general applicability relating to or
affecting creditors' rights and to general equity principles
(regardless of whether enforcement is considered in a proceeding at law
or in equity); and the Indenture and the Securities conform to the
descriptions thereof contained in the Prospectus, as supplemented;
(k) The issue and sale of the Securities and the compliance by
the Company with all of the provisions of the Securities, the Indenture
and this Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company is a party or by which the
Company is bound, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the
Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any
of its properties;
(l) The statements set forth in the Prospectus as supplemented
under the caption "Description of Senior Debt Securities," insofar as
they purport to constitute a summary of the terms of the Securities,
and under the captions "Material United States Federal Income Tax
Considerations" and "Plan of Distribution," insofar as they purport to
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describe the provisions of the laws and documents referred to therein,
are accurate, complete and fair;
(m) Neither the Company nor any of its Significant Subsidiaries
is in violation of its Certificate of Incorporation or By-laws or in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contracts, indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party;
(n) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would individually
or in the aggregate have a material adverse effect on the current or
future consolidated financial position, stockholders' equity or results
of operations of the Company and its subsidiaries, taken as a whole;
and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(o) The Company is not and, after giving effect to the offering
and sale of the Securities, will not be an "investment company," as
such term is defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act");
(p) PricewaterhouseCoopers LLP, who have certified certain
consolidated financial statements of the Company, are independent
public accountants as required by the Act and the rules and regulations
of the Commission thereunder; and
(q) Other than as set forth in the Prospectus, the Company and
its Significant Subsidiaries are (i) in compliance with any and all
applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) are in compliance with
all terms and conditions of any such permit, license or approval,
except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
3. On the basis of the representations, warranties and covenants
contained in this Agreement, and subject to the terms and conditions herein set
forth, the Company agrees to sell to the several Underwriters, and each
Underwriter agrees, severally and not jointly, to purchase from the Company, the
principal amount of Securities set forth in Schedule A hereto opposite to its
name at a purchase price equal to ______% of the aggregate principal amount of
the Securities.
4. The Securities to be delivered to the Underwriters hereunder will be
represented by one or more global certificates in book-entry form which will be
deposited by, or on behalf of,
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the Company with, and shall be registered in the name of, The Depository Trust
Company ("DTC") or its designated custodian. The Company will deliver the
Securities to the Underwriters at the Time of Delivery at the offices of
Shearman & Sterling, New York, New York, against payment of the purchase price
in Federal (same day) funds to the account specified by the Company to the
Underwriters. The Company will cause the certificates representing the
Securities to be made available to the Underwriters for checking at least twenty
four hours prior to the Time of Delivery at the offices of Shearman & Sterling.
The time and date of such delivery shall be 9:30 a.m., New York City time on
[insert date] or such other date and time as the Company and the Underwriters
may agree upon in writing. Such date and time are herein called the "Time of
Delivery."
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus as amended or supplemented in a
form approved by the Representatives and to file such Prospectus
pursuant to Rule 424(b) under the Act not later than the Commission's
close of business on the second business day following the date hereof
or, if applicable, such earlier time as may be required by Rule 424(b);
to make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date
hereof and prior to the Time of Delivery which shall be disapproved by
the Underwriters promptly after reasonable notice thereof (other
than the filing of 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); to advise
the Representatives promptly of any such amendment or supplement after
such Time of Delivery and furnish the Underwriters with copies thereof;
to file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for
so long as the delivery of a prospectus is required in connection with
the offering or sale of such Securities, and during such same period to
advise the Underwriters, promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed with the Commission, of the issuance
by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of such Securities for offering or sale
in any jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or Prospectus
or for additional information; and, in the event of the issuance of any
such stop order or of any such order preventing or suspending the use
of any prospectus relating to the Securities or suspending any such
qualification, to promptly use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Securities, provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction;
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(c) Prior to 10:00 a.m., New York City time, on the New York
business day next succeeding the date of this Agreement and from time
to time, to furnish the Representatives with copies of the Prospectus
as amended or supplemented in New York City in such quantities as the
Representatives may reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or
sale of the Securities and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such same period to amend
or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to notify
the Underwriters and upon their request to file such document and to
prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Underwriters may from time
to time reasonably request of an amended Prospectus or a supplement to
the Prospectus which will correct such statement or omission or effect
such compliance;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than 18 months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158); and
(e) During the period beginning from the date hereof and
continuing to and including the later of (i) the termination of trading
restrictions for the Securities, as notified to the Company by the
Underwriters and (ii) the Time of Delivery, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the
Company which mature more than one year after such Time of Delivery and
which are substantially similar to such Securities, without the prior
written consent of the Underwriters.
6. The Company covenants and agrees with the several Underwriters that
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 Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
this Agreement, any Indenture, any Blue Sky and Legal Investment Memoranda,
closing documents (including any compilations thereof) and any other documents
in connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky and Legal
Investment Surveys; (iv) any fees charged by securities rating services for
rating the Securities; (v) any filing fees incident to, and the fees and
disbursements of counsel for
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the Underwriters in connection with, any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (vi) the cost of preparing the Securities; (vii) the fees and
expenses of any Trustee and any agent of any Trustee and the fees and
disbursements of counsel for any Trustee in connection with any Indenture and
the Securities; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section 6, and Sections 8 and 12 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 Securities by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters shall be subject, in the
discretion of the Underwriters, to the condition that all representations and
warranties and other statements of the Company in or incorporated by reference
in the Prospectus as amended or supplemented are, at and as of the Time of
Delivery, true and correct, the condition that the Company shall have performed
all of its obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) The Prospectus as amended or supplemented shall have been filed
with the Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; no stop order suspending the effectiveness
of the Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Representatives' reasonable
satisfaction;
(b) Shearman & Sterling, counsel for the Underwriters, shall have
furnished to the Underwriters their opinion, dated the Time of Delivery, with
respect to the Company being duly incorporated and validly existing under the
laws of the jurisdiction of its incorporation, the matters covered in paragraphs
(v), (vi) and (vii) of subsection (c) below, and the accuracy and completeness
of the statements set forth in the Prospectus under the captions "Description of
Senior Debt Securities," insofar as they purport to constitute a summary of the
terms of the Securities, and "Plan of Distribution," insofar as they purport to
describe the documents referred to therein, as well as such other matters as the
Representatives on the behalf of the Underwriters may reasonably request, and
such counsel shall have received such documents and information as they may
reasonably request to enable them to pass upon such matters;
(c) Huber Lawrence & Abell, counsel for the Company, shall have
furnished to the Underwriters their opinion, dated the Time of Delivery, in form
and substance satisfactory to the Representatives on behalf of the Underwriters,
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
jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus as amended or
supplemented and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of its property
requires such qualification, except to the extent that the
failure to be so qualified or be in good
8
standing would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole;
(ii) 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 state in which it is
incorporated, has the power and authority (corporate and other)
to own its property and conduct its business as described in the
Prospectus as amended or supplemented and is duly qualified to
transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would
not have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(iii) All of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are
fully paid and non-assessable;
(iv) To the best of such counsel's knowledge and other
than as set forth in the Prospectus as amended or supplemented,
there are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which
any property of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of
its subsidiaries, would individually or in the aggregate have a
material adverse effect on the current or future consolidated
financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a
whole; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(v) This Agreement has been duly authorized, executed
and delivered by the Company;
(vi) The Securities have been duly authorized, executed,
issued and delivered and, assuming due authentication by the
Trustee, constitute valid and legally binding obligations of the
Company enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other laws or judicial decisions
of general applicability relating to or affecting creditors'
rights and to general equity principles (regardless of whether
enforcement is considered in a proceeding at law or in equity);
and the Securities are entitled to the benefits provided by the
Indenture; and the Securities and the Indenture conform in all
material respects to the descriptions thereof in the Prospectus
as amended or supplemented;
(vii) The Indenture has been duly authorized, executed
and delivered by the Company and constitutes a valid and legally
binding obligation of the Company, enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or
other laws or judicial decisions of general applicability
relating to or affecting creditors' rights and to general equity
principles (regardless of whether enforcement is considered in a
proceeding at law or in equity); and the Indenture has been duly
qualified under the Trust Indenture Act;
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(viii) The issue and sale of the Securities and the
compliance by the Company with all of the provisions of the
Securities, the Indenture and this Agreement and the
consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the
Company is a party or by which the Company is bound, nor will
such actions result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company or any
statute or any order, rule or regulation known to such counsel
of any court or governmental agency or body having jurisdiction
over the Company;
(ix) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale
of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement and the Indenture,
except such as have been obtained under the Act, the Holding
Company Act and such consents, approvals, authorizations,
orders, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters;
(x) Neither the Company nor any of its Significant
Subsidiaries is in violation of its By-laws or Certificate of
Incorporation or in default in the performance or observance of
any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust,
loan agreement, lease or other instrument to which it is a
party;
(xi) The statements set forth in the Prospectus under the
caption "Description of Senior Debt Securities," insofar as they
purport to constitute a summary of the terms of the Securities,
and under the captions "Material United States Federal Income
Tax Considerations" and "Plan of Distribution," insofar as they
purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair;
(xii) The Company is not an "investment company," as such
term is defined in the Investment Company Act;
(xiii) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial
statements, including the notes thereto and related schedules
therein, as to which such counsel need express no opinion), when
they were filed with the Commission, complied as to form in all
material respects with the requirements of the Exchange Act, and
the rules and regulations of the Commission thereunder; and they
have no reason to believe that any of such documents, when they
were so filed contained an untrue statement of a material fact
or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made when such documents were so filed, not
misleading; and
(xiv) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and
supplements thereto made by
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Energy East prior to the Time of Delivery (other than the
financial statements, including the notes thereto, and related
schedules therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the
rules and regulations thereunder; although they do not assume
any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the
Prospectus, except for those referred to in the opinion in
subsection (xi) of this Section 7(c), they have no reason to
believe that, as of the date of effectiveness of the
Registration Statement and as of the Time of Delivery, the
Registration Statement (other than the financial statements,
including the notes thereto, and related schedules therein, as
to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or that, as of its date
and as of the Time of Delivery, the Prospectus (other than the
financial statements, including the notes thereto, and related
schedules therein, as to which such counsel need express no
opinion) contained or contains an untrue statement of a material
fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; and they do not know of
any amendment to the Registration Statement as amended or
supplemented required to be filed or any contracts or other
documents of a character required to be filed as an exhibit to
such Registration Statement or required to be incorporated by
reference into the Prospectus as amended or supplemented or
required to be described in the Registration Statement or the
Prospectus, each as amended or supplemented, which are not filed
or incorporated by reference or described as required.
(d) Counsel for the Company satisfactory to the Representatives on
behalf of the Underwriters in the respective states of New York, Connecticut and
Maine shall each have furnished to the Underwriters their written opinion, dated
the Time of Delivery, in form and substance satisfactory to the Representatives
on behalf of the Underwriters, to the effect that:
(i) The Company is in good standing under the laws of such
state, with power and authority (corporate and other) to own its
properties and conduct its business as described in the
Prospectus as amended or supplemented and is duly qualified to
transact business and is in good standing in such state, except
to the extent such failure to be so qualified or be in good
standing would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole;
(ii) The Company is not a public utility or public service
company subject to the jurisdiction of the state commission or
regulatory authority in the respective state as a public utility
or public service company;
(iii) No consent, approval, authorization, order,
registration or qualification of or with any court, governmental
agency or regulatory authority of such state is required for the
issue and sale of the Securities or the consummation by the
Company of the transactions contemplated by this Agreement or
the Indenture, except such as have been obtained under the
Act, the Holding Company Act and such consents, approvals,
authorizations, orders, registrations or qualifications as may
be required under state securities or Blue Sky laws in
11
connection with the purchase and distribution of the Securities
by the Underwriters; and
(iv) The issue and sale of the Securities and the
compliance by the Company with all of the provisions of the
Securities, the Indenture and this Agreement and the
consummation of the transactions herein and therein contemplated
will not conflict with or result in a violation of any statute
or any order, rule or regulation known to such counsel of any
court or governmental agency or body in such state or
commonwealth having jurisdiction over the Company.
(e) On the date hereof and at the Time of Delivery, the independent
accountants of the Company who have certified the consolidated financial
statements of the Company included or incorporated by reference in the
Registration Statement shall have furnished to the Underwriters a letter to the
effect set forth in Exhibit A hereto with respect to such letter dated the date
hereof, and as to such other matters as the Underwriters may reasonably request
and in form and substance satisfactory to the Representatives on behalf of the
Underwriters with respect to such letter dated the Time of Delivery;
(f) (i) Neither the Company nor any of its subsidiaries shall have
sustained, since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, which would result in any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole, otherwise than
as set forth or contemplated in the Prospectus, and (ii) since the date hereof
there shall not have been any change in the capital stock (other than pursuant
to the Company's common stock repurchase program, or its dividend reinvestment
and other common stock plans), or long-term debt of the Company or any of its
Significant Subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated in
the Prospectus as of the date of this Agreement, the effect of which, in any
such case described in clause (i) or (ii), is in the judgment of the
Underwriters so material and adverse as to make it impracticable or inadvisable
to proceed with the public offering or the delivery of the Securities on the
terms and in the manner contemplated in the Prospectus;
(g) During the period beginning on the date hereof and ending at the
Time of Delivery (i) no downgrading shall have occurred in the rating accorded
the Company's debt securities or preferred stock by any "nationally recognized
statistical rating organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt securities or
preferred stock;
(h) During the period beginning on the date hereof and ending at the
Time of Delivery, there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange or the establishment of minimum prices on such exchange;
(ii) a suspension or material limitation in trading in the
12
Company's securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities declared by either Federal or New York State
authorities; (iv) a material disruption of the United States government
securities market, United States corporate bond market or the United States
federal wire transfer system; and (v) an outbreak or escalation of hostilities
involving the United States or the declaration of a national emergency or war by
the United States, if the effect of any such event specified in this clause (v)
in the judgment of the Representatives makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities on the terms
and in the manner contemplated in the Prospectus;
(i) The Company shall have complied with the provisions of Section 5(c)
hereof with respect to the furnishing of prospectuses on the New York business
day next succeeding the date of this Agreement; and
(j) The Company shall have furnished or caused to be furnished to the
Underwriters at the Time of Delivery a certificate or certificates of officers
of the Company satisfactory to the Representatives on behalf of the Underwriters
as to the accuracy of the representations and warranties of the Company herein
at and as of such Time of Delivery, as to the performance by the Company of all
of its obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth subsections (a) and (f) of this Section
and as to such other matters as the Underwriters may reasonably request.
8. (a) The Company agrees to indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Preliminary Prospectus, the
Registration Statement, the Prospectus, or any amendment 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 not misleading, and will reimburse such Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such expenses are
incurred; PROVIDED, HOWEVER, that the Company shall 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 an untrue statement or alleged untrue statement or omission or
alleged omission made in the Preliminary Prospectus, the Registration Statement,
the Prospectus, or any such amendment or supplement thereto, in reliance upon
and in conformity with written information relating to any Underwriter furnished
to the Company expressly for use in the Prospectus as amended or supplemented.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus, or any amendment 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 not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus
13
supplement, the Registration Statement, the Prospectus, or any amendment or
supplement thereto in reliance upon and in conformity with written information
relating to such Underwriter furnished to the Company by such Underwriter
expressly for use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party 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 benefits received by the Company on the one hand and the Underwriters
on the other to which such loss, claim, damage or liability (or action in
respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the one
hand and the Underwriters of the Securities 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 relevant
equitable considerations. 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
14
the total net proceeds from such offering (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received
by the Underwriters. 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 omission to state a material fact relates to
information supplied by the Company on the one hand or such Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Underwriters agree that it would not be just and equitable if 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 an
indemnified party 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
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Company within the meaning of the Act; and the obligations of the Underwriters
under this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of any Underwriter and to each person,
if any, who controls an Underwriter, within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Securities which it has agreed to purchase under this Agreement, the
non-defaulting Underwriters may in their discretion arrange for themselves or
another party or other parties to purchase such Securities on the terms
contained herein. If within thirty-six hours after such default by any
Underwriter the non-defaulting Underwriters do not arrange for the purchase of
such Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the non-defaulting Underwriters to purchase such Securities on
such terms. In the event that, within the respective prescribed period, the
non-defaulting Underwriters notify the Company that they have so arranged for
the purchase of such Securities, or the Company notifies the non-defaulting
Underwriters that it has so arranged for the purchase of such Securities, the
non-defaulting Underwriters or the Company shall have the right to postpone the
Time of Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus as amended or supplemented, or in any other documents or
arrangements, and the Company
15
agrees to file promptly any amendments or supplements to the Registration
Statement or the Prospectus which in the opinion of the non-defaulting
Underwriters may thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters and the Company as provided in subsection (a) above, the aggregate
principal amount of Securities which remains unpurchased does not exceed
one-eleventh of the aggregate principal amount of the Securities, then the
Company shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of Securities which such non-defaulting
Underwriter agreed to purchase under this Agreement and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based on the
aggregate principal amount of Securities which such Underwriter agreed to
purchase hereunder) of the Securities which such defaulting Underwriter or
Underwriters agreed to purchase for which such arrangements have not been made;
but nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters and the Company as provided in subsection (a) above, the aggregate
principal amount of Securities which remains unpurchased exceeds one-eleventh of
the aggregate principal amount of the Securities, as referred to in subsection
(b) above, or if the Company shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase
Securities of the defaulting Underwriter or Underwriters, then this Agreement
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve
the defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter, or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Securities.
11. All statements, requests, notices and agreements hereunder shall be
in writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to the address of such Underwriters; if to _________;
if to __________; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to Energy East Corporation, P.O. Box 12904,
Albany, NY 11212-2904, Attn: Treasurer; provided, however, that any notice to an
Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth
above. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
16
12. If the Company fails or refuses to comply with the terms or to
fulfill any of the conditions of this Agreement other than by reason of default
by the Underwriters, the Company will reimburse the Underwriters for all
out-of-pocket expenses approved in writing by the Underwriters, including fees
and disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase of the Securities.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters and the Company and, to the extent provided in
Sections 8 and 10 hereof, the officers and directors of the Company and each
person who controls any Underwriter or the Company, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Securities from any Underwriter shall be deemed a successor or assign
by reason merely of such purchase.
14. As used herein, "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business. Except as
expressly provided in this agreement, all capitalized terms used and not defined
herein shall have the meanings assigned to them in the Indenture.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties
hereto and thereto in any number of counterparts, each of which shall be deemed
to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
17
If the foregoing is in accordance with your understanding, please sign
and return to us six counterparts hereof.
Very truly yours,
ENERGY EAST CORPORATION
By: .................................
Name:............................
Title:...........................
Accepted as of the date hereof:
[Name of Representatives]
[NAME OF REPRESENTATIVE]
By:............................................
Name:.....................................
Title:....................................
[NAME OF REPRESENTATIVE]
By:............................................
Name:.....................................
Title:..................................
For themselves and on behalf of the several Underwriters named in Schedule A
hereto.
18
SCHEDULE A
PRINCIPAL AMOUNT OF
UNDERWRITERS SECURITIES TO BE PURCHASED
---------------------------
Total:
19
EXHIBIT A
Pursuant to Section 7(e) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable rules and regulations adopted by the Commission;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial information)
examined by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the
Act or the Exchange Act, as applicable, and the related rules and
regulations; and, if applicable, they have made a review in accordance
with standards established by the American Institute of Certified
Public Accountants of the consolidated interim financial statements,
selected financial data, pro forma financial information, financial
forecasts and/or condensed financial statements derived from audited
financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which have
been furnished to the Underwriters;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Company's quarterly
report on Form 10-Q incorporated by reference into the Prospectus; and
on the basis of specified procedures including inquiries of officials
of the Company who have responsibility for financial and accounting
matters regarding whether the unaudited condensed consolidated
financial statements referred to in paragraph (vi)(A)(i) below comply
as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related rules and
regulations, nothing came to their attention that caused them to
believe that the unaudited condensed consolidated financial statements
do not comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
rules and regulations adopted by the Commission;
(iv) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for five
such fiscal years included or incorporated by reference in the
Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter nothing
came to their attention as a result of the foregoing procedures that
caused them to believe that this information does not conform
in all material respects with the disclosure requirements of Items 301,
302 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) (i) the unaudited condensed consolidated statements
of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus and/or
included or incorporated by reference in the Company's Quarterly
Reports on Form 10-Q incorporated by reference in the Prospectus
do not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and the
published rules and regulations adopted by the Commission, or
(ii) any material modifications should be made to the unaudited
condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows
included in the Prospectus or included in the Company's
Quarterly Reports on Form 10-Q incorporated by reference in the
Prospectus for them to be in conformity with generally accepted
accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements
included or incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in clause (B)
were not determined on a basis substantially consistent with the
basis for the audited financial statements included or
incorporated by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the
rules and regulations adopted by the Commission thereunder or
the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior
to the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital
stock upon exercise of options and stock appreciation rights,
upon earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on
the date of the latest balance sheet included or incorporated by
reference in the Prospectus) or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or stockholders'
equity or other items specified by the Underwriter, or any
increases in any items specified by the Underwriters, in each
case as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus, except
in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are
described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the
Prospectus to the specified date referred to in clause (E) there
were any decreases in consolidated net revenues or operating
profit or the total or per share amounts of consolidated net
income or other items specified by the Underwriters, or any
increases in any items specified by the Underwriters, in each
case as compared with the comparable period of the preceding
year and with any other period of corresponding length specified
by the Underwriters, except in each case for increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an audit in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Underwriters which are derived from the general accounting records of
the Company and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference), or in Part II of, or
in exhibits and schedules to, the Registration Statement specified by
the Underwriters or in documents incorporated by reference in the
Prospectus specified by the Underwriters, and have compared certain of
such amounts, percentages and financial information with the accounting
records of the Company and its subsidiaries and have found them to be
in agreement.