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EXHIBIT 10.1
THE WILLIAMS COMPANIES, INC.
$700,000,000 7.50% Debentures due January 15, 2031
$400,000,000 6.75% Putable Asset Term Securities
Putable/Callable January 15, 2006
PURCHASE AGREEMENT
January 11, 2001
UBS Warburg LLC
Credit Suisse First Boston Corporation
Lehman Brothers Inc.
ABN AMRO Incorporated
Banc of America Securities LLC
BMO Nesbitt Burns Corp.
Commerzbank Securities
Credit Lyonnais Securities (USA) Inc.
The Royal Bank of Scotland plc
Scotia Capital Markets
TD Securities
c/o UBS Warburg LLC
677 Washington Boulevard
Stamford, CT 06901
Ladies and Gentlemen:
The Williams Companies, Inc., a corporation duly organized and existing
under the laws of the State of Delaware (the "Company"), UBS AG, acting through
its London Branch (the "Selling Securityholder") and UBS Warburg LLC, Credit
Suisse First Boston Corporation, Lehman Brothers Inc., ABN AMRO Incorporated,
Banc of America Securities LLC, BMO Nesbitt Burns Corp., Commerzbank Securities,
Credit Lyonnais Securities (USA) Inc., The Royal Bank of Scotland plc, Scotia
Capital Markets and TD Securities (the "Initial Purchasers") confirm their
agreement as follows: (1) the Company will sell to the Initial Purchasers
$200,000,000 aggregate principal amount of its 7.50% Debentures due January 15,
2031 (the "7.50% Debentures") and $400,000,000 aggregate principal amount of its
6.75% Putable Asset Term Securities Putable/Callable January 15, 2006 (the
"PATS" and, together with the 7.50% Debentures, the "Securities") and (2) the
Selling Securityholder will sell to the Initial Purchasers $500,000,000
aggregate principal amount of the 7.50% Debentures. The Securities will be
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entitled to the benefits of a registration rights agreement dated the date
hereof between the Company and the Initial Purchasers (the "Registration Rights
Agreement").
The Securities will be offered and sold to the Initial Purchasers,
without registration under the Securities Act of 1933, as amended (the
"Securities Act"), in reliance upon an exemption from the registration
requirements of the Securities Act. In connection with the sale of the
Securities, the Company has prepared an offering memorandum dated January 11,
2001 (the "Offering Memorandum") setting forth certain information concerning
the Company, the Selling Securityholder and the Securities. All references in
this Agreement to the Offering Memorandum include the documents incorporated by
reference therein. The Company hereby confirms that it has authorized the use of
the Offering Memorandum in connection with the offer and sale of the Securities.
The Company understands that the Initial Purchasers propose to make
offerings ("Exempt Resales") of the Securities only on the terms and in the
manner set forth in the Offering Memorandum and Section 3 hereof, as soon as the
Initial Purchasers deem advisable after this Agreement has been executed and
delivered only to (i) persons in the United States whom the Initial Purchasers
reasonably believe to be "qualified institutional buyers" ("QIBs") as defined in
Rule 144A under the Act, as such rule may be amended from time to time ("Rule
144A"), or, if any such person is buying for one or more institutional accounts
for which such person is acting as fiduciary or agent, only when such person has
represented to the Initial Purchasers that each such account is a QIB, to whom
notice has been given that such sale or delivery is being made in reliance on
Rule 144A, and, in each case, in transactions under Rule 144A and (ii) non-U.S.
persons to whom offers and sales of the Securities may be made in reliance upon
Regulation S under the Act ("Regulation S"), in transactions meeting the
requirements of Regulation S.
When used herein, the term "Indenture" shall refer to the indenture
dated as of November 10, 1997, between the Company and Bank One Trust Company,
N.A., as Trustee (the "Indenture Trustee") as amended by the First Supplemental
Indenture dated as of September 8, 2000, the Second Supplemental Indenture dated
as of December 7, 2000, the Third Supplemental Indenture dated as of December
20, 2000, the Fourth Supplemental Indenture dated as of January 17, 2001 and the
Fifth Supplemental Indenture dated as of January 17, 2001.
1. The Company represents and warrants to, and agrees with, the Initial
Purchasers that as of the date hereof and at the Time of Delivery (as defined
herein):
(a) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State
of Delaware and is duly qualified to do 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 financial
condition, results of operations or business of the Company and its
subsidiaries, taken as a whole (a "Material Adverse Effect");
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(b) Each of the significant subsidiaries (as defined in Rule
1-02(w) of Regulation S-X promulgated by the Securities and Exchange
Commission) of the Company (the "Significant Subsidiaries") has been
duly organized or validly formed, is validly existing and in good
standing under the laws of the jurisdiction of its formation or
incorporation and is duly qualified to do 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;
(c) Each of the Company and its Significant Subsidiaries has
all consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings with,
all federal, state, local and other governmental authorities, and all
courts or other tribunals (collectively the "Licenses") necessary to
own or lease, as the case may be, and to operate its properties and to
carry on its business as presently conducted, except where the failure
to possess such Licenses could not reasonably be expected to have a
Material Adverse Effect, and neither the Company nor any of its
Significant Subsidiaries has received any notice of proceedings
relating to revocation or modification of any such Licenses;
(d) Each of the Company and its Significant Subsidiaries (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 business 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;
(e) In the ordinary course of its business, each of the
Company and its Significant Subsidiaries conducts a periodic review of
the effect of Environmental Laws on its business, operations and
properties, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license
or approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such review,
each of the Company and its Significant Subsidiaries reasonably
concluded that such associated costs and liabilities would not, singly
or in the aggregate, have a Material Adverse Effect;
(f) The Company has filed all material tax returns which are
required to be filed by it and has paid all taxes due pursuant to such
returns or pursuant to any assessment received by the Company, except
where the same may be contested in good faith by
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appropriate proceedings, and where the Company has maintained in
accordance with generally accepted accounting principles appropriate
reserves for the accrual of any of the same. The charges, accruals and
reserves on the books of the Company in respect of taxes or other
governmental charges are, in the opinion of the Company, adequate;
(g) 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;
(h) This Agreement has been duly authorized, executed and
delivered by the Company;
(i) The Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution and
authentification by the Trustee, is a valid and binding obligation of
the Company, enforceable against the Company in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether considered in a proceeding in equity or at law).
The Indenture has been duly qualified under the Trust Indenture Act of
1939;
(j) The Securities have been duly authorized by the Company
and, when executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms of this Agreement, will be
entitled to the benefits of the Indenture and will be valid and binding
obligations of the Company, enforceable in accordance with their terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws
affecting creditors' rights generally and (ii) rights of acceleration,
if any, enforceability and the availability of equitable remedies may
be limited by equitable principles of general applicability (regardless
of whether considered in a proceeding in equity or at law);
(k) The Securities constitute unsecured and unsubordinated
obligations of the Company and rank pari passu without any preference
among themselves; the Securities rank pari passu with all other
unsecured and unsubordinated debt obligations of the Company other than
any unsubordinated debt obligations which rank junior to the
Securities;
(l) The Company Purchase Option (as defined in section 7(j) of
this Agreement) has been duly authorized, and when duly executed and
delivered by the Company and the Selling Securityholder, will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as
enforcement
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thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether considered in a proceeding
in equity or at law);
(m) The Registration Rights Agreement has been duly
authorized, and when duly executed and delivered by the Company and the
Initial Purchasers, will constitute valid and binding obligations of
the Company, enforceable against the Company in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether considered in a proceeding in equity or at law);
(n) The execution and delivery by the Company of this
Agreement, the Indenture, the issuance and delivery of the Securities,
the Company Purchase Option, the Registration Rights Agreement, the
consummation by the Company of the transactions contemplated herein and
the compliance by the Company with the terms of this Agreement, the
Indenture, the Securities and the Registration Rights Agreement have
been duly authorized by all necessary corporate action on the part of
the Company and do not and will not result in any violation of the
charter or by-laws of the Company, and do not and will not conflict
with, or result in a breach 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 (except for such conflicts,
breaches or defaults that could not reasonably be expected to have a
Material Adverse Effect), nor does or will such action result in any
violation of 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; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issuance and sale of the Securities
or the consummation by the Company of the transactions contemplated by
the Registration Rights Agreement, the Company Purchase Option, this
Agreement or the Indenture;
(o) Neither the Company nor any of its Significant
Subsidiaries is in violation of its charter 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;
(p) The Company has filed all documents with the Securities
and Exchange Commission (the "Commission") that it is required to file
under the Securities Act and the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), as applicable, and the rules and
regulations of the Commission thereunder, and such documents conformed
in all material respects to the requirements of the Securities Act or
the Exchange Act, as applicable,
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and the rules and regulations of the Commission thereunder, and at the
time so filed 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
documents filed with the Commission or any further amendment or
supplement thereto, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all material
respects to the requirements of the Securities 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;
(q) The Offering Memorandum does not as of the time hereof and
will not, as of the Time of Delivery, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not be made to the Initial Purchasers
with regard to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by, or
on behalf of, the Selling Securityholder or the Initial Purchasers, as
the case may be;
(r) Neither the Company nor any of its Significant
Subsidiaries has sustained, since the date of the latest audited
financial statements included or incorporated by reference in the
Offering Memorandum, any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, which would result in any material adverse change, or
any development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Offering Memorandum, and, since the respective
dates as of which information is given in the Offering Memorandum,
there has not been any change in the capital stock (other than pursuant
to the Company's common stock repurchase program, or its dividend
reinvestment and other common stock plans) or long-term debt of the
Company or any of its Significant Subsidiaries, 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
and its Significant Subsidiaries, taken as a whole, otherwise than as
disclosed in the Offering Memorandum;
(s) The consolidated financial statements filed with or as
part of any document filed with the Commission present fairly in all
material respects the financial position, results of operations and
changes in financial position of the Company and its
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subsidiaries at the dates and for the periods indicated, all in
conformity with generally accepted accounting principles; and the
Company has no material contingent obligation which is not disclosed in
such financial statements;
(t) Other than as set forth or incorporated by reference in
the Offering Memorandum, there is no action, suit or proceeding before
or by any government, governmental instrumentality or court, domestic
or foreign, now pending or, to the knowledge of the Company, threatened
against or affecting the Company that could reasonably be expected to
result in any Material Adverse Effect, or that could reasonably be
expected to adversely affect the consummation of the transactions
contemplated in this Agreement;
(u) Assuming the accuracy of the representations, warranties
and agreements of the Initial Purchasers in Section 4 hereof and the
Selling Securityholder in Section 2 hereof, compliance by the Initial
Purchasers and the Selling Securityholder with the offering and
transfer procedures and restrictions described in the Offering
Memorandum, the accuracy of the representations and warranties deemed
to be made in the Offering Memorandum by purchasers to whom the Initial
Purchasers initially resell the Securities and that purchasers to whom
the Initial Purchasers initially resell the Securities receive a copy
of the Offering Memorandum prior to such sale, it is not necessary in
connection with the offer, sale and delivery of the Securities to the
Initial Purchasers or in connection with the initial resale of the
Securities by the Initial Purchasers in the manner contemplated by this
Agreement and the Offering Memorandum to register the Securities under
the Securities Act or to qualify the Indenture under the Trust
Indenture Act of 1939, as amended;
(v) The Company, its affiliates and any person acting on its
or their behalf have not, directly or indirectly:
(i) engaged in any directed selling efforts (within
the meaning of Regulation S under the Securities Act) with
respect to the Securities;
(ii) offered or sold the Securities in the United
States by any form of general solicitation or general
advertising (within the meaning of Regulation D under the
Securities Act) or in any manner involving a public offering
within the meaning of Section 4(2) of the Securities Act; or
(iii) sold, solicited any offers to buy or offered to
sell or otherwise negotiated in respect of any security in a
manner that would require registration of the Securities under
the Securities Act in accordance with the theory of
"integration" referred to in Regulation D under the Securities
Act.
(w) The Securities satisfy the requirements of Rule 144A(d)(3)
under the Securities Act.
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(x) On the date hereof, the Offering Memorandum contains the
information regarding the Company specified in, and which satisfies the
requirements of, Rule 144A(d)(4) under the Securities Act.
(y) Ernst & Young LLP, who have audited certain consolidated
financial statements of the Company, are independent public accountants
as required by the Securities Act and the rules and regulations of the
Commission thereunder.
2. The Selling Securityholder represents and warrants to, and agrees
with, each of the Initial Purchasers that:
(a) This Agreement has been duly authorized, executed and
delivered by or on behalf of the Selling Securityholder;
(b) The execution and delivery by the Selling Securityholder
of, and the performance by the Selling Securityholder of its
obligations under this Agreement, and the consummation of the
transactions herein 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 Selling Securityholder is
a party or by which the Selling Securityholder is bound, nor will such
action result in any violation of the provisions of the Organization
Regulations of the Selling Securityholder or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Selling Securityholder or any of its properties;
and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required on behalf of the Selling Securityholder for the
consummation by the Selling Securityholder of the transactions
contemplated by this Agreement except such approvals as have been, or
will have been, prior to the Time of Delivery, obtained under the Act
and the Trust Indenture Act and such consents, approvals,
authorizations, orders, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Initial Purchasers;
(c) At the Time of Delivery, the Selling Securityholder will
have valid and unencumbered title to the 7.50% Debentures sold by it
pursuant to this Agreement and full right, power and authority to sell,
assign, transfer and deliver such 7.50% Debentures; and upon the
delivery and payment for such Securities at the Time of Delivery, the
Initial Purchasers will acquire valid and unencumbered title to such
7.50% Debentures;
(d) The Information relating to the Selling Securityholder
furnished in writing by or on behalf of the Selling Securityholder
expressly for use in the Offering Memorandum does not contain any
untrue statement of a material fact required to be stated therein or
necessary to make the statements therein not misleading.
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3. On the basis of the representations, warranties and covenants
contained in this Agreement, and subject to the terms and conditions herein set
forth, (a) the Company agrees to sell to the several Initial Purchasers, and
each Initial Purchaser agrees, severally and not jointly, to purchase from the
Company, the respective aggregate principal amount of 7.50% Debentures and PATS
set forth in columns A and B, respectively, of Schedule A hereto opposite to its
name at a purchase price equal to 99.07% and 99.625% of the aggregate principal
amount of such Securities, respectively; (b) the Selling Securityholder agrees
to sell to the several Initial Purchasers, and each Initial Purchaser agrees,
severally and not jointly, to purchase from the Selling Securityholder, the
respective aggregate principal amount of 7.50% Debentures set forth in column A
of Schedule B hereto opposite to its name at a purchase price equal to 99.07% of
the aggregate principal amount of such 7.50% Debentures; (c) the Company agrees
to pay to the Initial Purchasers a placement fee of 0.875% of $200,000,000
aggregate principal amount of the 7.50% Debentures and 0.60% of $400,000,000
aggregate principal amount of the PATS and the Selling Securityholder agrees to
pay to the Initial Purchasers a placement fee of 0.875% of $500,000,000
aggregate principal amount of the 7.50% Debentures, as compensation for placing
the Securities (the "Placement Fee"); (d) the Company agrees to assign to the
Selling Securityholder the option to purchase the PATS from the holders of such
securities provided for in the Fourth Supplemental Indenture (the "Call
Option"); and (e) the Selling Securityholder agrees to pay $20,043,330 to the
Company for the assignment of the Call Option.
4. Each Initial Purchaser, severally and not jointly, hereby represents
and warrants to, and agrees with the Company that: such Initial Purchaser (i) is
a QIB with such knowledge and experience in financial and business matters as
are necessary in order to evaluate the merits and risks of an investment in the
Securities; (ii) is not acquiring the Securities with a view to any distribution
thereof that would violate the Securities Act or the securities or blue sky laws
of any state or country, (iii) has received all information it considers
necessary to evaluate the merits and risks of an investment in the Securities,
(iv) will not engage in any directed selling efforts (within the meaning of
Regulation S under the Securities Act) with respect to the Securities and has
complied with the offering restriction requirements of Regulation S; (v) will
not offer or sell the Securities in the United States by any form of general
solicitation or general advertising (within the meaning of Regulation D under
the Securities Act) or in any manner involving a public offering within the
meaning of Section 4(2) if the Securities Act; and (vi) will offer or sell the
Securities only: (x) in offshore transactions in accordance with Rule 903 of
Regulation S under the Securities Act; provided that commencing on the date
hereof and continuing through a 40-day restricted period commencing at the Time
of Delivery: (1) no such offer or sale will be made to a U.S. person or for the
account or benefit of a U.S. person (other than such Initial Purchaser); and (2)
such Initial Purchaser, if selling Securities to a dealer or a person receiving
a selling concession, fee or other remuneration in respect of the Securities,
will send a confirmation or other notice to the purchaser stating that the
purchaser is subject to the same restrictions on offers and sales as are set
forth in this section 4; the terms used in this clause (x) are being used as
used in Regulation S under the Securities Act; or (y) to persons whom it
reasonably believes to be QIBs within the meaning of Rule 144A under the
Securities Act in compliance with Rule 144A.
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5. The Securities to be delivered to the Initial Purchasers 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. Such Securities shall bear the legend set forth in the Offering
Memorandum. The Company and the Selling Securityholder will deliver the
Securities respectively sold by them to the Initial Purchasers 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 and the Selling Securityholder to the Initial
Purchasers. The Company will cause the certificates representing the Securities
to be made available to the Initial Purchasers 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 and of the payment referred to in subsection (c)
of section 3 above shall be 9:30.a.m., New York City time on January 17, 2001 or
such other date and time as the Company, the Selling Securityholder and the
Initial Purchasers may agree upon in writing. Such date and time are herein
called the "Time of Delivery."
6. In further consideration of the agreements of the Initial Purchasers
herein contained, the Company, its affiliates and any person acting on its or
their behalf, covenant with the Initial Purchasers and the Selling
Securityholder as follows:
(a) The Company, its affiliates and any person acting on its
or their behalf will not, directly or indirectly:
(i) engage in any directed selling efforts (within
the meaning of Regulation S under the Securities Act) with
respect to the Securities;
(ii) offer or sell the Securities in the United
States by any form of general solicitation or general
advertising (within the meaning of Regulation D under the
Securities Act) or in any manner involving a public offering
within the meaning of Section 4(2) of the Securities Act; or
(iii) sell, solicit any offers to buy or offer to
sell or otherwise negotiate in respect of any security in a
manner that would require registration of the Securities under
the Securities Act in accordance with the theory of
"integration" referred to in Regulation D under the Securities
Act.
(b) The Company will maintain offering restrictions (within
the meaning of Regulation S under the Securities Act) in connection
with the offering of the Securities contemplated in this Agreement and
the Offering Memorandum commencing on the date hereof and continuing
through a 40-day restricted period commencing on the Time of Delivery.
(c) While any Security remains outstanding, during any period
in which the Company is not subject to Section 13 or Section 15(d) of
the Securities Exchange Act of
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1934, as amended, and its securities are not exempt from Section 12(g)
thereof pursuant to Rule 12g3-2(b) thereunder, the Company will upon
request make available to the Initial Purchasers, to any holder of
Securities, and to any prospective purchaser designated by any holder
of Securities, the information regarding the Company specified in, and
satisfying the requirements of, Rule 144A(d)(4) under the Securities
Act.
(d) The Company will prepare the Offering Memorandum in a form
approved by the Initial Purchasers, and before amending or
supplementing the Offering Memorandum, will furnish to the Initial
Purchasers a copy of each such proposed amendment or supplement and
will not prepare any such proposed amendment or supplement to which the
Initial Purchasers reasonably objects.
(e) Prior to 10:00 a.m., New York City time, on the New York
Business Day (as defined below) next succeeding the date of this
Agreement and from time to time, the Company will furnish the Initial
Purchasers, in New York City, with copies of the Offering Memorandum in
New York City and each amendment or supplement thereto, together with
any independent accountants' report contained in the Offering
Memorandum, and any amendment or supplement containing amendments to
the financial statements covered by such report, signed by the
accountants, and additional copies thereof in such quantities as the
Initial Purchasers from time to time reasonably request, and if, at any
time prior to the consummation of any Exempt Resale, any event shall
have occurred as a result of which the Offering Memorandum as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Offering Memorandum is delivered, not misleading,
or, if for any other reason it shall be necessary or desirable, during
such same period to amend or supplement the Offering Memorandum, the
Company will notify the Initial Purchasers and upon the Initial
Purchasers' request to prepare and furnish without charge to the
Initial Purchasers and to any dealer in securities as many copies as
the Initial Purchasers may from time to time reasonably request of the
amended Offering Memorandum or supplement to the Offering Memorandum
which will correct such statement or omission or effect such
compliance. For the purposes of this paragraph, "New York Business Day"
shall mean any day that is not a day on which banking institutions in
New York are generally authorized or required by law or regulation to
close;
(f) During the period beginning on the date hereof and
continuing to and including the Time of Delivery, the Company will not
offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company or warrants to purchase debt securities of
the Company substantially similar to the Securities (other than the
Securities), without the prior written consent of the Initial
Purchasers.
(g) The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including: (i) the
preparation the Offering
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Memorandum and all amendments and supplements thereto; (ii) the
preparation, issuance and delivery of the Securities; (iii) the fees
and disbursements of the Company's counsel and accountants and of the
Trustee and its counsel; (iv) the fees and disbursements of the Initial
Purchasers' counsel; (iv) the qualification of the Securities under
state securities or blue sky laws in accordance with the provisions of
Section 6(f), including filing fees and the fees and disbursements of
counsel for the Initial Purchasers in connection therewith and in
connection with the preparation of any blue sky or Legal Investment
Memoranda; (vi) the printing and delivery to the Initial Purchasers in
quantities as herein above stated of copies of the Offering Memorandum
and any amendments or supplements thereto; (vii) the printing and
delivery to the Initial Purchasers of copies of any blue sky or Legal
Investment Memoranda; (viii) any fees charged by rating agencies for
the rating of the Securities; (ix) any expenses incurred by the Company
in connection with a "road show" presentation to potential investors.
(h) To take all reasonable action necessary to enable Standard
& Poor's Rating Service, a division of McGraw Hill, Inc. ("S&P"), and
Moody's Investor Service, Inc. ("Moody's") to provide their respective
ratings of the Securities.
(i) To cooperate with the Initial Purchasers and use its
reasonable best efforts to permit the Securities to be eligible for
clearance and settlement through the facilities of the Depository Trust
Company.
7. The obligations of the Initial Purchasers shall be subject, in the
discretion of the Initial Purchasers, to the condition that all representations
and warranties and other statements of the Company in or incorporated by
reference in the Offering Memorandum 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) William G. von Glahn, Esq., Senior Vice President and
General Counsel of the Company, shall have furnished to such Initial
Purchasers an opinion, dated the Time of Delivery, in form and
substance reasonably satisfactory to the Initial Purchasers, to the
effect that:
(i) The Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the State of Delaware and is duly qualified to do
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;
(ii) Each of the Significant Subsidiaries has been
duly organized or validly formed, is validly existing and in
good standing under the laws of the jurisdiction of its
incorporation and is duly qualified to do business and is in
good
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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;
(iii) Each of the Company and the Significant
Subsidiaries has all Licenses necessary to own or lease, as
the case may be, and to operate its properties and to carry on
its business as presently conducted, except where the failure
to possess such Licenses could not reasonably be expected to
have a Material Adverse Effect, and neither the Company nor
any of its Significant Subsidiaries has received any notice of
proceedings relating to revocation or modification of any such
Licenses;
(iv) This Agreement has been duly authorized,
executed and delivered by the Company;
(v) The Indenture has been duly authorized, executed
and delivered by the Company and, assuming due authorization,
execution and authentification by the Trustee, is a valid and
binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles
of equity (regardless of whether considered in a proceeding in
equity or at law). The Indenture has been duly qualified under
the Trust Indenture Act of 1939;
(vi) The Securities have been duly authorized by the
Company and, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to and paid
for by the Initial Purchasers in accordance with the terms of
this Agreement, will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the
Company, enforceable in accordance with their terms except as
(i) the enforceability thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or
similar laws affecting creditors' rights generally and (ii)
rights of acceleration, if any, enforceability and the
availability of equitable remedies may be limited by equitable
principles of general applicability (regardless of whether
considered in a proceeding in equity or at law);
(vii) The Registration Rights Agreement has been duly
authorized, executed and delivered and, when executed and
delivered by the Initial Purchasers, will constitute valid and
binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as
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enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles
of equity (regardless of whether considered in a proceeding in
equity or at law);
(viii) The Company Purchase Option has been duly
authorized, and when duly executed and delivered by the
Company and the Selling Securityholder, will constitute valid
and binding obligations of the Company, enforceable against
the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles
of equity (regardless of whether considered in a proceeding in
equity or at law);
(ix) The execution and delivery by the Company of
this Agreement, the Indenture, the Registration Rights
Agreement, the issuance and delivery of the Securities, the
Company Purchase Option, the consummation by the Company of
the transactions contemplated herein and the compliance by the
Company with the terms of this Agreement, the Indenture, the
Registration Rights Agreement, the Company Purchase Option and
the Securities have been duly authorized by all necessary
corporate action on the part of the Company and do not and
will not result in any violation of the charter or by-laws of
the Company, and do not and will not conflict with, or result
in a breach 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
(except for such conflicts, breaches or defaults that could
not reasonably be expected to have a Material Adverse Effect),
nor does or will such action result in any violation of the
charter 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;
and no consent, approval, authorization, order, registration
or qualification of or with any such court or governmental
agency or body is required for the issuance and sale of the
Securities or the consummation by the Company of the
transactions contemplated by the Registration Rights
Agreement, the Company Purchase Option, this Agreement or the
Indenture;
(x) Neither the Company nor any of its Significant
Subsidiaries is in violation of its charter 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;
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(xi) The Company is not an "investment company," as
such term is defined in the Investment Company Act;
(xii) The Company has filed all documents with the
Commission that it is required to file under the Securities
Act and the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and such documents
(other than the financial statements, including the notes
thereto, and related schedules therein, and the other
financial and accounting data, as to which such counsel need
express no opinion) conformed in all material respects to 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 they became effective and were so
filed, as the case may be, contained, in the case of a
registration statement which became effective under the
Securities Act or Exchange 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;
(xiii) The statements in the Offering Memorandum
under the captions "Description of the Securities," insofar as
they purport to constitute a summary of the terms of the
Securities and "Plan of Distribution," insofar as they purport
to describe the legal matters and documents referred to
therein, fairly summarize in all material respects the matters
referred to therein;
(xiv) After due inquiry, such counsel does not know
of any legal or governmental proceedings pending or threatened
to which the Company is a party or to which any of the
properties of the Company is subject that are required to be
described in the Offering Memorandum and are not so described
or of any statutes, regulations, contracts or other documents
that are required to be described in the Offering Memorandum
that are not described as required;
(xv) Such counsel has no reason to believe that
(except for financial statements and schedules and related
notes thereto, and the other financial and accounting data as
to which such counsel need not express any belief) the
Offering Memorandum contains any untrue statement of a
material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; and
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(xvi) Assuming the accuracy of the representations of
the Initial Purchasers contained in Section 4 hereof and the
Selling Securityholder in Section 2 hereof, compliance by the
Initial Purchasers and the Selling Securityholder with the
offering and transfer procedures and restrictions described in
the Offering Memorandum, the accuracy of the representations
and warranties deemed to be made in the Offering Memorandum by
purchasers to whom the Initial Purchasers initially resell the
Securities and that purchasers to whom the Initial Purchasers
initially resell the Securities receive a copy of the Offering
Memorandum prior to such sale, it is not necessary in
connection with the offer, sale and delivery of the Securities
in the manner contemplated in this Agreement to register the
Securities under the Securities Act or to qualify the
Indenture under the Trust Indenture Act of 1939, as amended.
(b) Counsel (which may be in-house counsel) for the Selling
Securityholder, shall have furnished to the Initial Purchasers an
opinion, dated the Time of Delivery, in form and substance satisfactory
to the Initial Purchasers, to the effect that:
(i) This Agreement has been duly authorized, executed
and delivered by the Selling Securityholder;
(ii) The Selling Securityholder had full right, power
and authority to sell and deliver the Securities sold by it in
accordance with the provisions of this Agreement; and
(iii) Upon delivery to DTC or its agent of the
Securities sold by the Selling Securityholder registered in
the name of Cede & Co., as nominee for DTC, and upon the
payment of the purchase price for such Securities and the
crediting by DTC of such Securities to the securities accounts
of the Initial Purchasers with DTC, the Initial Purchasers
will acquire a valid entitlement (within the meaning of
Section 8-501 of the New York Uniform Commercial Code) in
respect of the Securities to be purchased by it, and no action
(whether framed in conversion, replevin, constructive trust,
equitable lien, or other theory) based on an adverse claim to
such Securities may be asserted against the Initial Purchasers
(assuming that the Initial Purchasers are without notice of
any adverse claim).
(c) The Initial Purchasers shall have received at the Time of
Delivery an opinion of Shearman & Sterling, counsel for the Initial
Purchasers, dated the Time of Delivery, covering the matters referred
to in subparagraphs (iv), (v) and (vi) of subsection (a) above and the
accuracy and completeness of the statements set forth in the Offering
Memorandum under the captions "Description of the Securities," insofar
as they purport to constitute a summary of the terms of the Securities,
and "Plan of Distribution," insofar as they purport to describe the
documents referred to therein, as well as such other matters as the
Initial Purchasers 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.
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(d) The Initial Purchasers shall have received at the time of
execution of this Agreement a letter, dated the date hereof, in form
and substance satisfactory to the Initial Purchasers, from Ernst &
Young LLP, independent public accountants, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to the Initial Purchasers with respect to the financial
statements and certain financial information contained in the Offering
Memorandum.
(e) With respect to the letter of Ernst & Young referred to in
the preceding paragraph and delivered to the Initial Purchasers on the
date hereof (the "Initial Letter"), the Initial Purchasers shall have
received at the Time of Delivery a letter (the "Bring Down Letter")
from Ernst & Young, dated the Time of Delivery (i) stating as of the
date of such Bring Down Letter the conclusions and findings of such
firm with respect to the financial information and other matters
covered by the Initial Letter and (ii) confirming in all material
respects the conclusions and findings set forth in the Initial Letter.
(f) (i) Neither the Company nor any of its Significant
Subsidiaries shall have sustained, since the date of the latest audited
financial statements included in or incorporated by reference in the
Offering Memorandum, any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, which would result in any material adverse change, or
any development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Offering Memorandum, and (ii) since the respective
dates as of which information is given in the Offering Memorandum,
there shall not have been any change in the capital stock (other than
pursuant to the Company's common stock repurchase program, or its
dividend reinvestment and other common stock plans) or long-term debt
of the Company or any of its Significant Subsidiaries or any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of
the Company and its Significant Subsidiaries, taken as a whole,
otherwise than as set forth in the Offering Memorandum, 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 Initial Purchasers so
material and adverse as to make it impracticable or inadvisable to
proceed with the sale or the delivery of the Securities on the terms
and in the manner contemplated in the Offering Memorandum;
(g) During the period beginning on the date hereof and ending
at the Time of Delivery, (i) no downgrading shall have occurred in the
rating accorded the debt securities or preferred stock of the Company
by any "nationally recognized statistical rating organization," as that
term is defined by the Commission for purposes of Rule 436(g)(2) under
the Securities Act, and (ii) no such organization shall have publicly
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announced that it has under surveillance or review, with possible
negative implications, its rating of any of the debt securities or
preferred stock of the Company;
(h) During the period beginning on the date hereof and ending
at the Time of Delivery, there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange or the
establishment of minimum prices on such exchange; (ii) a suspension or
material limitation in trading in the 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 (h) in the judgment of the Initial
Purchasers makes it impracticable or inadvisable to proceed with the
sale or the delivery of the Securities; and
(i) The Company shall furnish, or cause to be furnished to the
Initial Purchasers, at the Time of Delivery, a certificate or
certificates of officers of the Company satisfactory to the Initial
Purchasers (i) as to the accuracy of the representations and warranties
of the Company herein at and as of such Time of Delivery, (ii) as to
the performance by the Company of all of its obligations hereunder to
be performed at or prior to such Time of Delivery, (iii) as to the
matters set forth in clauses (i) and (ii) of subsection (f) of this
Section and (iv) as to such other matters as the Initial Purchasers may
reasonably request.
(j) The Company and the Initial Purchaser shall have entered
into a letter agreement satisfactory to the Initial Purchaser,
substantially in the form of Exhibit A hereto (the "Company Purchase
Option").
8. (a) The Company agrees to indemnify and hold harmless the
Selling Securityholder and each Initial Purchaser against any losses,
claims, damages or liabilities, joint or several, to which such
Securityholder or Initial Purchaser, as the case may be, 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 Offering Memorandum, 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 Selling Securityholder or Initial Purchaser, as the
case may be, for any legal or other expenses reasonably incurred by
such Selling Securityholder or Initial Purchaser 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
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Offering Memorandum, or any such amendment or supplement thereto, in
reliance upon and in conformity with written information relating to
the Selling Securityholder or any Initial Purchaser furnished to the
Company by the Selling Securityholder or such Initial Purchasers, as
the case may be, expressly for use in the Offering Memorandum as
amended or supplemented.
(b) The Selling Securityholder agrees to indemnify and hold
harmless the Company and each Initial Purchaser against any losses,
claims, damages or liabilities, joint or several, to which such Company
or Initial Purchaser 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 Offering
Memorandum, 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 the Offering Memorandum, or
any amendment or supplement thereto in reliance upon and in conformity
with written information relating to the Selling Securityholder
furnished to the Company by the Selling Securityholder expressly for
use therein; and will reimburse the Company and each Initial Purchaser
for any legal or other expenses reasonably incurred by the Company or
such Initial Purchaser in connection with investigating or defending
any such action or claim as such expenses are incurred;
(c) Each Initial Purchaser agrees to indemnify and hold
harmless the Company and the Selling Securityholder against any losses,
claims, damages or liabilities to which the Company or the Selling
Securityholder 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 Offering
Memorandum, 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 the Offering Memorandum, or
any amendment or supplement thereto in reliance upon and in conformity
with written information relating to such Initial Purchaser furnished
to the Company by such Initial Purchaser expressly for use therein; and
will reimburse the Company and the Selling Securityholder for any legal
or other expenses reasonably incurred by the Company or the Selling
Securityholder in connection with investigating or defending any such
action or claim as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) 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
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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.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a), (b) or (c) 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 Selling Securityholder and the Company on the one hand and the
Initial Purchasers 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 (d) 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 Selling
Securityholder and the Company on the one hand and the Initial
Purchasers of the Securities on the other in connection with the
statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by
the Selling Securityholder and the Company on the one hand and the
Initial Purchasers 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 and the Selling
Securityholder bear to the total commissions received by the Initial
Purchasers. The relative benefits received by the Company on the one
hand and the Selling Securityholder 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 and the Selling
Securityholder bear to the total commissions received by the Initial
Purchasers. The relative fault shall be
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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 Selling Securityholder and the Company on the one hand or such
Initial Purchasers on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company, the Selling Securityholder and
the Initial Purchasers agree that it would not be just and equitable if
contribution pursuant to this subsection (e) were determined by pro
rata allocation or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (e). 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 (e) 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 (e), no Initial Purchaser shall be required to contribute
any amount in excess of the amount by which the total price at which
the Securities sold by it exceeds the amount of any damages which such
Initial Purchaser has otherwise been required to pay by reason of such
an untrue or alleged untrue statement or 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.
(f) The obligations of the Selling Securityholder or the
Company under this Section 8 shall be in addition to any liability
which the Selling Securityholder or the Company, as the case may be,
may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Initial Purchasers
within the meaning of the Act; and the obligations of the Initial
Purchasers under this Section 8 shall be in addition to any liability
which the respective Initial Purchasers may otherwise have and shall
extend, upon the same terms and conditions, to each officer and
director of the Selling Securityholder or the Company, as the case may
be, and to each person, if any, who controls the Selling Securityholder
or the Company, as the case may be, within the meaning of the Act.
9. The respective agreements, representations, warranties and other
statements of the Company, the Selling Securityholder and the Initial Purchasers
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 Initial Purchaser or any controlling person of such Initial
Purchaser or the Company, or any officer or director or controlling person of
the Company, and shall survive delivery of and payment for the Securities.
10. All statements, requests, notices and agreements hereunder shall be
in writing, and if to the Selling Securityholder shall be delivered or sent by
mail, telex or facsimile transmission to UBS AG, London Branch, c/o UBS Warburg
LLC, 677 Washington Boulevard, Stamford, CT 06901, Attn: William Sullivan,
facsimile number: 203-719-7319; if to the Initial Purchasers by mail, telex or
facsimile transmission to UBS Warburg LLC, 677 Washington Boulevard,
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Stamford, CT 06901, Attn: Scott Giese, facsimile number: 203-719-7319; and if to
the Company shall be delivered or sent by mail, telex or facsimile transmission
to The Williams Companies, Inc., One Williams Center, Tulsa, Oklahoma 74172,
Attn: Treasurer, facsimile number: 918-573-2065. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
11. This Agreement shall be binding upon, and inure solely to the
benefit of, the Initial Purchasers, the Selling Securityholder and 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 the Initial Purchasers
shall be deemed a successor or assign by reason merely of such purchase.
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 Initial Purchasers or Selling Securityholder, the Company will reimburse
the Initial Purchasers for all out-of-pocket expenses approved in writing by the
Initial Purchasers, including fees and disbursements of counsel, reasonably
incurred by the Initial Purchasers in making preparations for the purchase of
the Securities.
13. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
14. 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.
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If the foregoing is in accordance with your understanding, please sign
and return to us 6 counterparts hereof.
Very truly yours,
UBS AG, acting through its London Branch
By: /s/ WILLIAM A. SULLIVAN
-------------------------------------
Name: William A. Sullivan
Title: Director, Legal and External
Affairs
By: /s/ BRYAN MURTAGH
-------------------------------------
Name: Bryan Murtagh
Title: Executive Director, Legal
and External Affairs
THE WILLIAMS COMPANIES, INC.
By: /s/ DEBORAH S. FLEMING
-------------------------------------
Name: Deborah S. Fleming
Title: Treasurer
Accepted as of the date hereof:
UBS Warburg LLC
Credit Suisse First Boston Corporation
Lehman Brothers Inc.
ABN AMRO Incorporated
Banc of America Securities LLC
BMO Nesbitt Burns Corp.
Commerzbank Securities
Credit Lyonnais Securities
The Royal Bank of Scotland PLC
Scotia Capital Markets
TD Securities
By: UBS Warburg LLC
Acting on behalf of itself and the several Initial Purchasers
By: /s/ SCOTT K. GIESE
-----------------------------
Name: Scott K. Giese
---------------------------
Title: Executive Director
--------------------------
Global F1 Derivatives
By: /s/ GARY KAUFMAN
-----------------------------
Name: Gary Kaufman
---------------------------
Title: Executive Director
--------------------------
Global Rates Derivatives
24
SCHEDULE A
PRINCIPAL AMOUNT OF SECURITIES TO BE PURCHASED FROM THE COMPANY
A B
PRINCIPAL AMOUNT OF PRINCIPAL AMOUNT OF
INITIAL PURCHASER 7.50% DEBENTURES 6.75% PATS TOTAL
----------------- ------------------- ------------------- -----
UBS Warburg LLC $120,000,000 $240,000,000 $360,000,000
Credit Suisse First Boston Corporation $ 25,000,000 $ 50,000,000 $ 75,000,000
Lehman Brothers Inc. $ 25,000,000 $ 50,000,000 $ 75,000,000
ABN AMRO Incorporated $ 3,750,000 $ 7,500,000 $ 11,250,000
Banc of America Securities LLC $ 3,750,000 $ 7,500,000 $ 11,250,000
BMO Nesbitt Burns Corp. $ 3,750,000 $ 7,500,000 $ 11,250,000
Commerzbank Securities $ 3,750,000 $ 7,500,000 $ 11,250,000
Credit Lyonnais Securities (USA) Inc. $ 3,750,000 $ 7,500,000 $ 11,250,000
The Royal Bank of Scotland plc $ 3,750,000 $ 7,500,000 $ 11,250,000
Scotia Capital Markets $ 3,750,000 $ 7,500,000 $ 11,250,000
TD Securities $ 3,750,000 $ 7,500,000 $ 11,250,000
------------ ------------ ------------
TOTAL $200,000,000 $400,000,000 $600,000,000
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25
SCHEDULE B
PRINCIPAL AMOUNT OF SECURITIES TO BE PURCHASED FROM THE SELLING SECURITYHOLDER
A
PRINCIPAL AMOUNT OF
INITIAL PURCHASER 7.50% DEBENTURES
----------------- -------------------
UBS Warburg LLC $300,000,000
Credit Suisse First Boston Corporation $ 62,500,000
Lehman Brothers Inc. $ 62,500,000
ABN AMRO Incorporated $ 9,375,000
Banc of America Securities LLC $ 9,375,000
BMO Nesbitt Burns Corp. $ 9,375,000
Commerzbank Securities $ 9,375,000
Credit Lyonnais Securities (USA) Inc. $ 9,375,000
The Royal Bank of Scotland plc $ 9,375,000
Scotia Capital Markets $ 9,375,000
TD Securities $ 9,375,000
------------
TOTAL $500,000,000
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3