Exhibit 1-3
NEW YORK STATE ELECTRIC & GAS CORPORATION
$_________ ___% SENIOR UNSECURED 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. New York State Electric & Gas 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 Unsecured 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. 33-50719),
as amended by Post-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
_______________ between the Company and JPMorgan Chase Bank, as
trustee, to be 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 to
Delivery, obtained under the Act, and such consents, approvals,
authorizations, orders, registrations or qualifications as have been,
or will have been, prior to the Time to Delivery, obtained from the
Public Service Commission of the State of New York and 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
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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;
(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 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 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) The Company has not 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, stockholder's equity or results of operations of the Company,
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 or long-term debt of the Company, or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, stockholder's equity or results of
operations of the Company, 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 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;
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(h) 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;
(i) This Agreement has been duly authorized, executed and
delivered by the Company;
(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 captions "Description of Securities-Senior Unsecured Debt
Securities" and "Description of the Notes," 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,"
"Plan of Distribution" and "Underwriting," insofar as they purport to
describe the provisions of the laws and documents referred to therein,
are accurate, complete and fair;
(m) The Company is not 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 is a
party or of which any property of the Company is the subject which, if
determined adversely to the Company, would individually or in the
aggregate have a material adverse effect on the current or future
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financial position, stockholder's equity or results of operations of
the Company; 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
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 (i)
is 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) has
received all permits, licenses or other approvals required of it under
applicable Environmental Laws to conduct its businesses and (iii) is 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.
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, 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:
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(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;
(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
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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 (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 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
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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 (iv), (v) and (vi) of
subsection (c) below, and the accuracy and completeness of the
statements set forth in the Prospectus under the captions "Description
of Securities-Senior Unsecured Debt Securities" and "Description of the
Notes," insofar as they purport to constitute a summary of the terms of
the Securities, and "Plan of Distribution" and "Underwriting," 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, where applicable, 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
8
extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the
Company;
(ii) 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;
(iii) 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 is a party or of which any
property of the Company is the subject which, if determined
adversely to the Company, would individually or in the
aggregate have a material adverse effect on the current or
future financial position, stockholder's equity or results of
operations of the Company; and, to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(iv) This Agreement has been duly authorized,
executed and delivered by the Company;
(v) 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 their 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;
(vi) 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;
(vii) 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
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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;
(viii) 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, and such
consents, approvals, authorizations, orders, registrations or
qualifications as have been obtained from the Public Service
Commission of the State of New York, 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;
(ix) The Company is not 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;
(x) The statements set forth in the Prospectus under
the captions "Description of Securities-Senior Unsecured Debt
Securities" and "Description of the Notes," 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," "Plan of Distribution" and
"Underwriting," insofar as they purport to describe the
provisions of the laws and documents referred to therein, are
accurate, complete and fair;
(xi) The Company is not an "investment company," as
such term is defined in the Investment Company Act;
(xii) 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
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therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading;
and
(xiii) The Registration Statement and the Prospectus
as amended or supplemented and any further amendments and
supplements thereto made by the Company 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 (x) 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 omitted 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) On the date hereof and at the Time of Delivery, the
independent accountants of the Company who have certified the 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;
(e) (i) The Company shall not 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
11
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholder's equity
or results of operations of the Company, 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 or long-term debt
of the Company or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, stockholder's equity or results of operations of
the Company, 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;
(f) 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;
(g) 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 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;
(h) 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
(i) The Company shall have furnished or caused to be furnished
to the
12
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 in subsections (a) and (e) 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, the directors, officers, employees and agents of each Underwriter
and each person who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject. The Company also 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 severally and not jointly 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, 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 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.
13
(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
14
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 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
15
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 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
16
of such Underwriters; if to _________; if to __________; and if to the Company
shall be delivered or sent by mail, telex or facsimile transmission to New York
State Electric & Gas Corporation, P.O. Box 3287, Ithaca, NY 14852-3287, Attn:
Treasurer, facsimile number: [(607) 347-2560]; 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.
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.
[Signature page follows on the next page.]
17
If the foregoing is in accordance with your understanding, please sign
and return to us six counterparts hereof.
Very truly yours,
NEW YORK STATE ELECTRIC & GAS 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.
SCHEDULE A
PRINCIPAL AMOUNT OF
SECURITIES TO BE
UNDERWRITERS PURCHASED
-------------------
Total:
EXHIBIT A
Pursuant to Section 7(d) 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 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 statement schedules audited (and, if
applicable, financial forecasts and/or pro forma financial information)
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;
(iii) They have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement on Auditing
Standards (SAS) 71, Interim Financial Information, on the
unaudited condensed statements of income, balance sheets and
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 (but not an audit in accordance with generally accepted
auditing standards) including inquiries of officials of the Company
who have responsibility for financial and accounting matters
regarding whether the unaudited condensed interim 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 interim 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 results of operations and financial position of the Company for
the five most recent fiscal years set forth under the caption "Selected
Financial Data and Capitalization" 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 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
A-1
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
audit 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, inspection of the minute
books of the Company since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus,
inquiries of officials of the Company responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention as a
result of the foregoing procedures that caused them to believe that:
(A) (i) the unaudited condensed statements of income,
balance sheets and 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 statements of
income, balance sheets and 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 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 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 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) at the date of the latest availabile interim
financial data and at a specified date not more than five
business days prior to the date of
A-2
such letter, there have been any changes in the capital stock
or any increase in the long-term debt of the Company, or any
decreases in net current assets or common stock 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
income statement included or incorporated by reference in
the Prospectus to the specified date referred to in clause (E)
there were any decreases in operating revenues or operating
income or total 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 were obtained from accounting
records which are subject to controls over financial reporting or
which have been derived directly from such general accounting
records of the Company by analysis or computation, 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 have
found them to be in agreement.
A-3