Exhibit 1(b)
MURPHY OIL CORPORATION
UNDERWRITING AGREEMENT
New York, New York
---------- --, ----
Murphy Oil Corporation
200 Peach Street, P.O. Box 7000
El Dorado, Arkansas 71731-7000
Ladies and Gentlemen:
We (the "Manager") are acting on behalf of the underwriters (including
ourselves) identified on the table below (such underwriters being herein called
the "Underwriters"), and we understand that Murphy Oil Corporation, a Delaware
corporation (the "Company"), proposes to issue and sell [Number of Shares] of
[Full Title of Equity Securities] (the "Firm Equity Securities"). The Firm
Equity Securities are also referred to herein as the "Offered Securities."
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to issue and sell to each
Underwriter and, upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to all the terms and
conditions set forth herein, each of the Underwriters agrees to purchase from
the Company, severally and not jointly, the number of shares of Firm Equity
Securities set forth below opposite its name at a purchase price of $____.
Number of Shares of Firm Equity
Name Securities
---- -----------------------------------
Total . . . . . . . .$
============
The Underwriters will pay for the Offered Securities upon delivery
thereof at [office] at __:__ a.m. (New York City time) on _______ __, ____, or
at such other time as shall be designated by the Manager. The time and date of
such payment and delivery are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the Basic
Prospectus dated _______ __, 1999, and the Prospectus Supplement dated _______
__, ____, including the following:
Title of Equity Securities:
Number of Firm Equity Securities to be issued:
Maximum Number of Additional Equity Securities to be issued:
Current ratings (for preferred equity securities):
Dividend rate:
Redemption provisions:
Conversion provisions:
Other terms:
Public offering price:
Purchase price:
Specified funds for payment of purchase price:
Closing date and location:
Lock-up Period:
Additional co-managers, if any:
All provisions contained in the document entitled Murphy Oil Corporation
Underwriting Agreement Standard Provisions (Equity Securities) dated _______ __,
____, a copy of which is attached hereto, are herein incorporated by reference
in their entirety and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein, except that (a)
if any term defined in such document is otherwise defined herein, the definition
set forth herein shall control, (b) all references in such document to a type of
security that is not an Offered Security shall not be deemed to be a part of
this Agreement, and (c) all references in such document to a type of agreement
that has not been entered into in connection with the transactions contemplated
hereby shall not be deemed to be a part of this Agreement.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters by having an authorized officer
sign a copy of this Agreement in the space set forth below.
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Very truly yours,
[Name of Lead Manager],
Acting severally on behalf of itself
and the several Underwriters named herein:
By:
--------------------------------------
Name:
Title:
Accepted:
MURPHY OIL CORPORATION
By:
-----------------------------------
Name:
Title:
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MURPHY OIL CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(EQUITY SECURITIES)
------- --, ----
From time to time, Murphy Oil Corporation, a Delaware corporation (the
"Company"), may enter into one or more underwriting agreements that provide for
the sale of its equity securities (the "Equity Securities) to the several
underwriters named therein. The standard provisions set forth herein may be
incorporated by reference in any such underwriting agreement (an "Underwriting
Agreement"). The Underwriting Agreement, including the provisions incorporated
therein by reference, is herein referred to as this Agreement. Terms defined in
the Underwriting Agreement are used herein as therein defined.
The Underwriting Agreement relating to each offering of Equity
Securities shall specify the class, designation and terms of the Equity
Securities to be issued, the names of the Underwriters participating in such
offering (subject to substitution as provided in Section 8 hereof) and the
number of Equity Securities which each Underwriter severally agrees to purchase
(collectively, the "Firm Equity Securities") the names of such of such
Underwriters acting as co-managers in connection with such offering, the price
at which the Equity Securities are to be purchased by the Underwriters from the
Company, the initial public offering price and the time and place of delivery
and payment. In addition, the Underwriting Agreement shall specify the maximum
number of Equity Securities, if any (the "Additional Equity Securities"), that
the Company proposes to issue and sell to the Underwriters if and to the extent
that the Manager shall have determined to exercise, on behalf of the several
Underwriters, the right to purchase such Additional Equity Securities.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3, including a prospectus,
relating to the Equity Securities and has filed with, or transmitted for filing
to, or shall hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "Prospectus Supplement") specifically relating to the
Offered Securities pursuant to Rule 424 under the Securities Act of 1933, as
amended (the "Securities Act"). The term "Registration Statement" means the
registration statement, including the exhibits thereto, as amended to the date
of this Agreement and, in the event any post-effective amendment thereto or any
registration statement (and any amendments thereto) filed pursuant to Rule
462(b) under the Securities Act relating to the offering (a "Rule 462(b)
Registration Statement") becomes effective prior to the Closing Date, also means
such
registration statement as so amended or such Rule 462(b) Registration Statement,
as the case may be. The term "Basic Prospectus" means the prospectus in the form
first filed with the Commission. The term "Prospectus" means the Basic
Prospectus together with the Prospectus Supplement. The term "preliminary
prospectus" means a preliminary prospectus supplement specifically relating to
the Offered Securities, together with the Basic Prospectus. As used herein, the
terms "Registration Statement", "Basic Prospectus", "Prospectus" and
"preliminary prospectus" shall include in each case the documents, if any,
incorporated by reference therein. The terms "supplement" and "amendment" or
"amend" as used herein shall include all documents deemed to be incorporated by
reference in the Prospectus that are filed subsequent to the date of the Basic
Prospectus by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
1. Representations and Warranties. The Company represents and
warrants to each of the Underwriters that:
(a) (i) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission; (ii) the Company and the transactions
contemplated by this Agreement meet the requirements for using Form S- 3
under the Securities Act; and (iii) the Company will next file with the
Commission either (1) the Prospectus Supplement relating to the Offered
Securities in accordance with Rules 430A and 424(b) or (2) the
Prospectus in accordance with Rules 415 and 424(b). In the case of
clause (1), the Company has included in such Registration Statement all
information (other than Rule 430A Information (as defined below))
required by the Securities Act and the rules thereunder to be included
in such Registration Statement and the Prospectus. As filed, such
Prospectus shall contain all Rule 430A Information, together with all
other such required information, and, except to the extent the Manager
shall agree in writing to a modification, shall be in all substantive
respects in the form furnished to the Manager prior to the time this
Agreement is executed (the "Execution Time"), or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
Basic Prospectus and any preliminary prospectus) as the Company has
advised the Manager, prior to the Execution Time, will be included or
made therein. The Registration Statement, at the Execution Time, meets
the requirements set forth in Rule 415(a)(1)(x). "Rule 430A Information"
shall mean information with respect to the Offered Securities and the
offering thereof permitted to be omitted from the Registration Statement
pursuant to Rule 430A.
(b) (i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder; (ii) each part of the Registration Statement, when such part
became effective, did not contain, and each such part, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make
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the statements therein not misleading; (iii) the Registration Statement
and the Prospectus comply, and, as amended or supplemented, if
applicable, will comply in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder;
and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and
warranties set forth in this Section 1(b) do not apply to statements or
omissions in the Registration Statement or the Prospectus based upon
information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Manager expressly for use
therein.
(c) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority 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.
(d) Each 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 corporate power and authority
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.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The authorized capital stock of the Company conforms as to
legal matters to the descriptions thereof contained in the Prospectus.
(g) The Equity Securities have been duly authorized and, when
issued and delivered in accordance with the terms of this Agreement and
the Underwriting Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Equity Securities will not be
subject to any preemptive or similar rights.
(h) The shares of the Company's common stock, par value $1.00 per
share (the "Common Stock"), into which the Equity Securities may be
converted, if any (the "Conversion Shares"), have been duly authorized
and reserved for issuance upon conversion of the Equity Securities and,
when issued and delivered upon any such conversion, will be validly
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issued, fully paid and non-assessable, and the issuance of such
Conversion Shares will not be subject to any preemptive or similar
rights.
(i) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or
to which any of the properties of the Company or any of its subsidiaries
is subject that are required to be described in the Registration
Statement or the Prospectus and are not so described or any statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement that are not described or
filed as required.
(j) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended.
(k) The accountants who certified the financial statements
included or incorporated by reference in the Prospectus are independent
public accountants as required by the Securities Act and the regulations
thereunder.
(l) The consolidated financial statements of the Company and its
subsidiaries included or incorporated by reference in the Prospectus
present fairly the financial position of the Company and its
subsidiaries as at the dates indicated and the results of their
operations for the periods specified; except as stated therein, said
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout
the period or periods involved.
(m) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as otherwise
stated therein or contemplated thereby, there has been no material
adverse change, or any development involving a prospective material
adverse change, in the condition, financial or otherwise, of the Company
and its subsidiaries, taken as a whole, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries, taken
as a whole, whether or not arising in the ordinary course of business.
(n) The Company is not in violation of its charter or in default
in the performance or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a party or by
which it or any of its properties may be bound, which default would have
a material adverse effect on the Company and its subsidiaries, taken as
a whole; and the execution and delivery of this Agreement and the
consummation of the transactions contemplated herein will not conflict
with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company pursuant to any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Company is a party or by which it may be bound or to which any of the
property or assets of the Company is subject, nor will such action
result in any violation of the provisions of the charter
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or by-laws of the Company or, to the best of its knowledge, any law,
administrative regulation or administrative or court order or decree;
and no consent, approval, authorization, order or decree of any court or
governmental agency or body is required for the consummation by the
Company of the transactions contemplated by this Agreement, except such
as may be required under the Securities Act or state securities or Blue
Sky laws.
(o) The Company owns or possesses or has obtained all material
governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to lease or own, as the case may be, and to
operate its properties and to carry on its business as presently
conducted.
Any certificate signed by any officer of the Company and delivered to
the Underwriters or to counsel for the Underwriters in connection with an
offering of Offered Securities shall be deemed a representation and warranty by
the Company to the Underwriters as to the matters covered thereby.
2. Public Offering. The Company is advised by the Manager that the
Underwriters propose to make a public offering of their respective portions of
the Offered Securities as soon after this Agreement has been entered into as in
the Manager's judgment is advisable. The terms of the public offering of the
Offered Securities are set forth in the Prospectus.
3. Purchase and Delivery. Payment for the Firm Equity Securities shall
be made by wire transfer payable in same-day funds to an account specified by
the Company at the time and place set forth in the Underwriting Agreement, upon
delivery to the Manager for the respective accounts of the several Underwriters
of the Firm Equity Securities to be purchased by them.
If so specified in the Underwriting Agreement, the Underwriters shall
have a one-time right to purchase, severally and not jointly, up to the number
of Additional Equity Securities set forth in the Underwriting Agreement at the
purchase price set forth in the Underwriting Agreement plus accrued dividends,
if any. Additional Equity Securities may be purchased solely for the purpose of
covering over-allotments made in connection with the offering of the Firm Equity
Securities. If any Additional Equity Securities are to be purchased, each
Underwriter agrees, severally and not jointly, to purchase the number of
Additional Equity Securities (subject to such adjustments to eliminate
fractional shares as you may determine) that bears the same proportion to the
total number of Additional Equity Securities to be purchased as the number of
Firm Equity Securities set forth opposite its name in the Underwriting Agreement
bears to the total number of Firm Equity Securities.
Payment of the purchase price for, and delivery of, any Additional
Equity Securities to be purchased by the Underwriters shall be made at such time
(which may be the same as the Closing Date but shall in no event be earlier than
the Closing Date nor later than ten business days after the giving of the notice
hereinafter referred to) and place as shall be designated in a written notice
from the Manager to the Company of the Manager's determination, on behalf of the
Underwriters, to purchase a number, specified in such notice, of Additional
Equity Securities, or at such other time, in any event not later than 30 days
after the
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Closing Date, as shall be designated in writing by the Underwriters. The time
and date of such payment are hereinafter referred to as the "Option Closing
Date". The notice of the determination to exercise the option to purchase
Additional Equity Securities and of the Option Closing Date may be given at any
time within 30 days after the date of the Underwriting Agreement.
Certificates evidencing the Firm Equity Securities and Additional Equity
Securities shall be in definitive form and registered in such names in such
denominations as the Manager shall request in writing not less than two full
business days prior to the Closing Date or the Option Closing Date, as the case
may be. The certificates evidencing the Firm Equity Securities and Additional
Equity Securities shall be delivered to the Manager at the Closing Date or the
Option Closing Date, as the case may be, for the respective accounts of the
several Underwriters, with any transfer taxes payable in connection with the
transfer of the Firm Equity Securities and the Additional Equity Securities to
the Underwriters duly paid, against payment of the purchase price therefor.
4. Conditions to Closing. The several obligations of the Underwriters
hereunder are subject to the following conditions:
(a) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date,
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations, of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus, that, in the
judgment of the Manager, is material and adverse and that makes
it, in the judgment of the Manager, impracticable to market the
Offered Securities or enforce contracts for the sale of the
Offered Securities on the terms and in the manner contemplated in
the Prospectus.
(b) The Manager shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in clause (a)(i) above and to
the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied
on or before the Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his knowledge as to proceedings threatened.
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(c) The Manager shall have received on the Closing Date an
opinion of the General Counsel of the Company, dated the Closing Date,
in form and substance satisfactory to the Underwriters and the
Underwriters' counsel, to the effect set forth in Exhibit A.
(d) The Manager shall have received on the Closing Date an
opinion of Davis Polk & Wardwell, counsel for the Company, dated the
Closing Date, in form and substance satisfactory to the Underwriters and
the Underwriters' counsel, to the effect set forth in Exhibit B.
(e) The Manager shall have received on the Closing Date an
opinion of counsel for the Underwriters specified in the Prospectus,
dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Manager shall have received on the Closing Date a letter,
dated the Closing Date, in form and substance satisfactory to the
Manager, from the Company's independent public accountants, containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Prospectus.
(g) The Company shall not have failed at or prior to the Closing
Date to have performed or complied with any of its agreements herein
contained and required to be performed or complied with by it hereunder
at or prior to the Closing Date.
(h) The Company shall have furnished or caused to be furnished to
the Manager such further certificates and documents as the Manager shall
have reasonably requested.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to the Manager and its counsel.
Any certificate or document signed by any officer of the Company and
delivered to the Manager, as representatives of the Underwriters, or to counsel
for the Underwriters, shall be deemed a representation and warranty by the
Company to each Underwriter as to the statements made therein.
The obligations of the Underwriters to purchase Additional Equity
Securities pursuant to any Underwriting Agreement are subject to the delivery to
the Manager at the Option Closing Date of such documents as the Manager may
reasonably request with respect to the good standing of the Company, the due
authorization and issuance of the Additional Equity Securities and other matters
related to the issuance of the Additional Equity Securities.
5. Covenants of the Company. In further consideration of the agreements
of the Underwriters contained herein, the Company covenants as follows:
(a) To furnish the Manager, without charge, a signed copy of the
Registration Statement (including exhibits thereto) and for delivery to
each
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other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and, during the period mentioned in paragraph
(c) below, as many copies of the Prospectus, any documents incorporated
by reference therein and any supplements and amendments thereto or to
the Registration Statement as the Manager may reasonably request.
(b) Before amending or supplementing the Registration Statement
or the Prospectus with respect to the Offered Securities, or before
filing any Rule 462(b) Registration Statement, to furnish to the Manager
a copy of each such proposed amendment, supplement or Rule 462(b)
Registration Statement and not to file any such proposed amendment,
supplement or Rule 462(b) Registration Statement to which the Manager
reasonably objects within a reasonable period after receipt of such
proposed amendment or supplement. Subject to the foregoing sentence, the
Company will cause the Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the Manager of such timely
filing.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur
or condition exist as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare, and, subject to Section 5(b),
file with the Commission and furnish for use, at its own expense, to the
Underwriters, and to the dealers (whose names and addresses the Manager
will furnish to the Company) to which Offered Securities may have been
sold by the Manager on behalf of the Underwriters and to any other
dealer upon request, either amendments or supplements to the Prospectus
so that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus, as so
amended or supplemented, will comply with law. In the event that the
Company and the Manager agree that the Prospectus should be amended or
supplemented, the Company, if reasonably requested by the Manager, will
promptly issue a press release announcing or disclosing the matters to
be covered by the proposed amendment or supplement.
(d) To endeavor and cooperate with the Manager and with counsel
for the Underwriters in connection with registration or qualification of
the Offered Securities for offer and sale under the securities or Blue
Sky laws of such jurisdictions as the Manager shall reasonably request
and to pay all expenses (including fees and disbursements of counsel) in
connection with such registration or qualification.
(e) To make generally available to the Company's security holders
and to the Manager as soon as practicable an earning statement covering
a
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twelve month period beginning on the first day of the first full fiscal
quarter after the date of this Agreement, which earning statement shall
satisfy the provisions of Section 11(a) of the Securities Act and the
rules and regulations of the Commission thereunder.
(f) If so specified in the Underwriting Agreement, the Company
will not, without the prior written consent of the Manager, offer, sell,
contract to sell or otherwise dispose of any securities of the Company
designated in the Agreement during the Lock-up Period specified in the
Underwriting Agreement, other than (i) the Equity Securities to be sold
hereunder; (ii) the Common Stock, if any, issuable upon conversion
convertible into Common Stock or upon exercise of any existing options
to purchase Common Stock; and (iii) options or shares of Common Stock
sold or issued pursuant to any employee benefit plan or arrangement of
the Company or any of its subsidiaries existing on the date of the
Underwriting Agreement.
(g) The Company agrees to pay the following costs and expenses
and all other costs and expenses incident to the performance by it of
its obligations hereunder: (i) the preparation, printing (or
reproduction), and filing with the Commission of the registration
statement (including financial statements and exhibits thereto), each
preliminary prospectus, each Basic Prospectus, the Prospectus, each
amendment or supplement to any of them and this Agreement; (ii) the
printing (or reproduction) and delivery (including postage, air freight
charges and charges for counting and packaging) of such copies of the
Registration Statement, each preliminary prospectus, each Basic
Prospectus, the Prospectus, the incorporated documents, and all
amendments or supplements to any of them, as may reasonably be requested
for use in connection with the offering and sale of the Offered
Securities; (iii) the preparation, printing, authentication, issuance
and delivery of the Offered Securities, including any stamp taxes in
connection with the original issuance of the Offered Securities; (iv)
the printing (or reproduction) and delivery of this Agreement, the
preliminary and supplemental Blue Sky Memoranda and all other agreements
or documents printed (or reproduced) and delivered in connection with
the offering of the Offered Securities; (v) the registration of the
Offered Securities under the Exchange Act; (vi) the registration or
qualification of the Offered Securities for offer and sale under the
securities or Blue Sky laws of the several states as provided in Section
5(d) hereof (including the reasonable fees, expenses and disbursements
of counsel for the Underwriters relating to the preparations, printing
(or reproduction), and delivery of the preliminary and supplemental Blue
Sky Memoranda and such registration and qualification); (vii) the filing
fees and the fees and expenses of counsel for the Underwriters in
connection with any filing required to be made with the National
Association of Securities Dealers, Inc.; (viii) the fees and expenses
associated with obtaining ratings for the Offered Securities from
nationally recognized statistical rating organizations; (ix) the
transportation and other expenses incurred by or on behalf of Company
representatives in connection with presentations to prospective
purchasers of the Offered Securities; and (x) the fees and expenses of
the Company's accountants and the fees and
9
expenses of counsel (including local and special counsel) for the
Company.
(h) The Company will apply the net proceeds from the sale of the
Offered Securities substantially in accordance with the description set
forth in the Prospectus.
(i) The Company, during the period when the Prospectus is
required to be delivered under the Securities Act, will file promptly
all documents required to be filed with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act.
(j) The Company will advise you promptly and, if requested by
you, will confirm such advice in writing: (i) when the Prospectus, and
any supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration
Statement shall have been filed with the Commission; (ii) of any request
by the Commission for amendment of or a supplement to the Registration
Statement, any Rule 462(b) Registration Statement, preliminary
prospectus, Basic Prospectus or the Prospectus or for additional
information; (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the
suspension of qualification of the Offered Securities for offering or
sale in any jurisdiction or the initiation of any proceeding for such
purpose; and (iv) within the period of time that any Prospectus is
required to be delivered under the Securities Act in connection with
sales of the Offered Securities by any Underwriter or dealer, of any
change in the Company's condition (financial or other), business,
prospects, properties, net worth or results of operations, or of the
happening of any event, which makes any statement of a material fact
made in the Registration Statement or the Prospectus (as then amended or
supplemented) untrue or which requires the making of any additions to or
changes in the Registration Statement or the Prospectus (as then amended
or supplemented) in order to state a material fact required by the
Securities Act or the regulations thereunder to be stated therein or
necessary in order to make the statements therein not misleading, or of
the necessity to amend or supplement the Prospectus (as then amended or
supplemented) to comply with the Securities Act or any other law. If at
any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, the Company will make every
reasonable effort to obtain the withdrawal of such order at the earliest
possible time.
6. Indemnification and Contribution. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls such
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act (i) from and against any and all losses, claims,
damages and liabilities arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
amendment thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
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statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the
Manager expressly for use therein; (ii) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or investigation or
proceeding by any governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission in each case if such settlement is
effected with the written consent of the Company; and (iii) against any and all
expense whatsoever, as incurred (including the fees and disbursements of counsel
chosen by the Manager), reasonably incurred in investigating, preparing or
defending against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission (except as made in reliance upon and in conformity with
information furnished by the Manager as aforesaid), to the extent that any such
expense is not paid under (i) or (ii) above.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Underwriter,
but only with reference to information relating to such Underwriter furnished to
the Company by such Underwriter in writing through the Manager expressly for use
in the Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to any of the three preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel, (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them or (iii) the indemnifying party has failed to
retain counsel as set forth herein. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the
11
Manager, in the case of parties indemnified pursuant to the first or third
preceding paragraph, and by the Company, in the case of parties indemnified
pursuant to the second preceding paragraph. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the third sentence of this
paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (A) such
settlement is entered into more than 60 days after receipt by such indemnifying
party of the aforesaid request and (B) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(d) If the indemnification provided for in the first or second paragraph
in this Section 6 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) 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 hand from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, 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 hand
in connection with the offering of the Offered Securities shall be deemed to be
in the same respective proportions as the net proceeds from the offering of such
Offered Securities (before deducting expenses) received by the Company and the
total underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover of the Prospectus Supplement,
bear to the aggregate public offering price of the Offered Securities. The
relative fault of the Company on the one hand and of the Underwriters on the
other hand 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
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this Section
6 are several in proportion to the respective
12
principal amounts of Offered Securities they have agreed to purchase hereunder,
and not joint.
(e) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 6 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 that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that 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
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 6 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section
6 and the representations and warranties of the Company contained herein shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or by or on behalf of the
Company, its directors or officers or any person controlling the Company and
(iii) acceptance of and payment for any of the Offered Securities. Any losses,
claims, damages, liabilities or expenses for which an indemnified party is
entitled to indemnification or contribution under this Section 6 shall be paid
by the indemnifying party to the indemnified party as such losses, claims,
damages, liabilities or expenses are incurred. A successor to any Underwriter or
any person controlling any Underwriter, or to the Company, its directors or
officers, or any person controlling the Company, shall be entitled to the
benefits of the indemnity, contribution and reimbursement agreements contained
in this Section 6.
7. Termination. This Agreement shall be subject to termination, by
notice given by the Manager to the Company, if (a) after the execution and
delivery of the Underwriting Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, any of the New York Stock Exchange, the American Stock Exchange or the
Nasdaq National Market, (ii) trading of any securities of the Company shall have
been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities, or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Manager, is material and adverse and (b) in the case of any of the events
specified in clauses (a)(i) through (iv), such event, singly or together with
any other such event, makes it, in
13
the sole judgment of the Manager, impracticable to commence or continue to
market the Offered Securities on the terms and in the manner contemplated in the
Prospectus.
8. Defaulting Underwriters. If, on the Closing Date or the Option
Closing Date, any one or more of the Underwriters shall fail or refuse to
purchase Firm Equity Securities or Additional Equity Securities, as the case may
be, that it has or they have agreed to purchase hereunder on such date, and the
aggregate amount of Firm Equity Securities or Additional Equity Securities, as
the case may be, which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate amount
of the Firm Equity Securities to be purchased pursuant to the Underwriting
Agreement, the nondefaulting Underwriters shall be obligated severally in the
proportions that the amount of Firm Equity Securities set forth opposite their
respective names above bears to the aggregate amount of Firm Equity Securities
set forth opposite the names of all such nondefaulting Underwriters, or in such
other proportions as the Manager may specify, to purchase the Firm Equity
Securities or Additional Equity Securities, as the case may be, which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; provided that in no event shall the amount of Firm Equity
Securities that any Underwriter has agreed to purchase pursuant to this
Agreement be increased pursuant to this Section 8 by an amount in excess of
one-ninth of such amount of Firm Equity Securities without the written consent
of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters
shall fail or refuse to purchase Firm Equity Securities or Additional Equity
Securities, as the case may be, and the aggregate amount of Firm Equity
Securities or Additional Equity Securities, as the case may be, with respect to
which such default occurs is more than one-tenth of the aggregate amount of Firm
Equity Securities to be purchased pursuant to the Underwriting Agreement, and
arrangements satisfactory to the Manager and the Company for the purchase of
such Firm Equity Securities or Additional Equity Securities are not made within
36 hours after such default, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter or the Company. In any such case
either the Manager or the Company shall have the right to postpone the Closing
Date or the Option Closing Date but in no event for longer then seven days, in
order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement. The term "Underwriter" as used in this Agreement includes, for all
purposes of this Agreement, any party not listed herein who, with the approval
of the Manager and the approval of the Company, purchases Firm Equity Securities
or Additional Equity Securities which a defaulting Underwriter is obligated, but
fails or refuses, to purchase.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
14
reasonably incurred by such Underwriters in connection with this Agreement or
the offering of the Offered Securities.
9. Miscellaneous. The Underwriting Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
11. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
12. Parties at Interest. This Agreement has been and is made solely for
the benefit of the Underwriters and the Company, and the controlling persons,
directors and officers referred to in Section 6 hereof, and their respective
successors, assigns, executors and administrators. No other person shall acquire
or have any right under or by virtue of this Agreement.
15
EXHIBIT A
Opinion of General Counsel
of the Company
The opinion of General Counsel of the Company, to be delivered pursuant
to Section 4(c) of the Underwriting Agreement shall be to the effect that:
(1) The Company and each Significant Subsidiary has been duly
incorporated in good standing and is validly existing as a corporation
in good standing under the laws of the jurisdiction of its incorporation
with full corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement.
(2) The issued and outstanding common stock of each Significant
Subsidiary has been duly authorized and validly issued and is fully paid
and non-assessable; and the Company owns the issued and outstanding
common stock of each Significant Subsidiary free and clear of any
mortgages, liens or similar encumbrances.
(3) 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 nonassessable.
(4) To the knowledge of such counsel, the execution and delivery
of the Underwriting Agreement, the issuance of the Offered Securities
and the consummation of the transactions therein contemplated do not and
will not conflict with or constitute or result in a breach of, or
default under, (a) any judgment, order or decree of any government,
governmental instrumentality or court having jurisdiction over the
Company, any Significant Subsidiary, or any of their property, which is
material to such corporations, taken as a whole or (b) any provision of
any indenture, mortgage or similar agreement or instrument known to such
counsel to which the Company or any Significant Subsidiary is a party or
by which they or any material part of their property is bound except for
such conflicts, breaches or defaults as would not have a material
adverse effect on the Company and its subsidiaries taken as a whole.
(5) No regulatory consent, authorization, approval or filing is
required by the laws of the States of Delaware or Louisiana or, to the
best of his knowledge, any other state for the issuance, sale and
delivery of the Offered Securities by the Company to the Underwriters
except such as have been obtained or made under the 1933 Act, the 1934
Act and other applicable legislation specified in such opinion and such
as may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Offered Securities by you.
(6) To the best of such counsel's knowledge and 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 such counsel has reasonable cause to believe could
individually or in the aggregate have a material adverse effect on the
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.
(7) The Offered Securities have been duly authorized and, when
issued and delivered in accordance with the terms of the Underwriting
Agreement, will be validly issued, fully paid and non-assessable, and
the issuance of such Securities will not be subject to any preemptive or
similar rights.
(8) The shares of the Company's Common Stock, par value $1.00
per share (the "Common Stock"), into which the Offered Securities may be
converted, if any (the "Conversion Shares"), have been duly authorized
and reserved for issuance upon conversion of the Offered Securities and,
when issued and delivered upon any such conversion, will be validly
issued, fully paid and non-assessable, and the issuance of such
Conversion Shares will not be subject to any preemptive or similar
rights.
(9) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion),
when they became effective or were filed with the Commission, as the
case may be, complied as to form in all material respects with the
requirements of the Securities Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder; and such
counsel has no reason to believe that any of such documents, when such
documents became effective or were so filed, as the case may be,
contained, in the case of a registration statement which became
effective under the Securities Act, 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, in the
case of other documents which were filed under the Securities Act or the
Exchange Act with the Commission, 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.
(10) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made by
the Company prior to the Closing Date (other than the financial
statements and related schedules and other financial and statistical
information therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the
Securities Act and the rules and regulations thereunder; such counsel
has no reason to believe that, as of its effective date, the
Registration
2
Statement or any further amendment thereto made by the Company prior to
the Closing Date (other than the financial statements and related
schedules and other financial and statistical information 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, the Prospectus as
amended or supplemented or any further amendment or supplement thereto
made by the Company prior to the Closing Date (other than the financial
statements and related schedules and other financial and statistical
information 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 necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or that, as of
the Closing Date, the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by the Company prior to the
Closing Date (other than the financial statements and related schedules
and other financial and statistical information therein, as to which
such counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; and such counsel does not know of any amendment to
the Registration Statement required to be filed or any contracts or
other documents of a character required to be filed as an exhibit to the
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 as amended or supplemented
which are not filed or incorporated by reference or described as
required.
In rendering such opinion, such counsel may rely, without independent
investigation, upon an opinion or opinions of local counsel as to laws other
than the federal laws of the United States, the General Corporation Law of the
State of Delaware or the laws of the State of Louisiana; provided that (a) each
such local counsel is acceptable to the Representatives and (b) such reliance is
expressly authorized by each opinion so relied upon and a copy of each such
opinion is delivered to the Representatives and is in form and substance
satisfactory to the Representatives and their counsel. With respect to
subparagraph (10) above, such counsel may state that his opinion and belief are
based upon his participation and the participation of his staff in the
preparation of the Registration Statement and Prospectus and review and
discussion of the information furnished therein, but without independent check
or verification thereof, except as stated.
3
EXHIBIT B
Opinion of Davis Polk & Wardwell,
Counsel for the Company
The opinion of Davis Polk & Wardwell, special counsel for the Company,
to be delivered pursuant to Section 4(d) of the Underwriting Agreement shall be
to the effect that:
(1) The Underwriting Agreement has been duly authorized, executed
and delivered by the Company.
(2) The Registration Statement is effective under the Securities
Act, and to the best knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or are pending or
contemplated under the Securities Act.
(3) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the
United States or the State of New York is required for the issue and
sale of the Offered Securities or the consummation by the Company of the
transactions contemplated by this Agreement except such as have been
obtained under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Offered Securities by the Underwriters in the manner
contemplated by this Agreement.
(4) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and related
schedules and other financial information therein, as to which such
counsel need express no opinion), when they became effective or were
filed with the Commission, as the case may be, complied as to form in
all material respects with the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder.
(5) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments or supplements thereto made by
the Company prior to the Closing Date (other than the financial
statements and related schedules and other financial and statistical
information therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the
Securities Act and the rules and regulations thereunder; such counsel
has no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the
Company prior to the Closing Date (other than the financial statements
and related schedules and other financial and statistical information
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, the Prospectus as
amended or supplemented or any further amendment or supplement thereto
made by the Company prior to the Closing Date (other than the financial
statements and related schedules and other financial and statistical
information 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 necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or that, as of
the Closing Date, either the Registration Statement or the Prospectus as
amended or supplemented or any further amendment or supplement thereto
made by the Company prior to the Closing Date (other than the financial
statements and related schedules and other financial and statistical
information therein, as to which such counsel need express no opinion)
contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and such
counsel does not know of any amendment to the Registration Statement
required to be filed.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the United States, the
State of New York and the General Corporation Law of the State of Delaware. With
respect to subparagraph (5) above, such counsel may state that their opinion and
belief are based upon their participation in the preparation of the Registration
Statement and Prospectus as amended or supplemented and review and discussion of
the information furnished therein, but without independent check or verification
thereof, except as specified.
2
EXHIBIT C
Opinion of
Counsel for the Underwriters
The opinion of counsel for the Underwriters, to be delivered pursuant to
Section 4(e) of the Underwriting Agreement shall be to the effect that:
(1) The Underwriting Agreement has been duly authorized, executed
and delivered by the Company.
(2) The Offered Securities have been duly authorized and, when
issued and delivered in accordance with the terms of the Underwriting
Agreement, will be validly issued, fully paid and non-assessable, and
the issuance of such Securities will not be subject to any preemptive or
similar rights.
(3) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments or supplements thereto made by
the Company prior to the Closing Date (other than the financial
statements and related schedules and other financial and statistical
information therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the
Securities Act and the rules and regulations thereunder; such counsel
has no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the
Company prior to the Closing Date (other than the financial statements
and related schedules and other financial and statistical information
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, the Prospectus as
amended or supplemented or any further amendment or supplement thereto
made by the Company prior to the Closing Date (other than the financial
statements and related schedules and other financial and statistical
information 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 necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or that, as of
the Closing Date, either the Registration Statement or the Prospectus as
amended or supplemented or any further amendment or supplement thereto
made by the Company prior to the Closing Date (other than the financial
statements and related schedules and other financial and statistical
information therein, as to which such counsel need express no opinion)
contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and such
counsel does not
know of any amendment to the Registration Statement required to be
filed.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the United States, the
State of New York and the General Corporation Law of the State of Delaware. With
respect to subparagraph (3) above, such counsel may state that their opinion and
belief are based upon their participation in the preparation of the Registration
Statement and Prospectus as amended or supplemented and review and discussion of
the information furnished therein, but without independent check or verification
thereof, except as specified.
4