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[Form of June 26, 1996] EXHIBIT (1a)
FINA OIL AND CHEMICAL COMPANY
Senior Debt Securities
UNDERWRITING AGREEMENT
__________________________, 199___
To the Representatives of the
several Underwriters named
in the respective Pricing
Agreements hereinafter
described.
Dear Sirs:
From time to time Fina Oil and Chemical Company, a Delaware
corporation (the "Company"), proposes to enter into one or more Pricing
Agreements (each a "Pricing Agreement") in the form of Annex I hereto, with
such additions and deletions as the parties thereto may determine, and, subject
to the terms and conditions stated herein and therein, to issue and sell to the
firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein), certain of the Company's senior debt securities
as guaranteed by FINA, Inc., a Delaware corporation (the "Guarantor"),
(collectively, the "Securities") specified in Schedule II to such Pricing
Agreement (with respect to such Pricing Agreement, the "Designated
Securities").
The term and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from
time to time to the Underwriters of such Securities, for whom you, designated
as representatives of the Underwriters of such Securities in the Pricing
Agreement relating thereto, will act as representatives (the
"Representatives"). The term "Representative" also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who act
without any firm being designated as their representative. This Underwriting
Agreement (this "Agreement") shall not be construed as an obligation of the
Company to sell any of the Securities or as an obligation of any of the
Underwriters to purchase any of the Securities. The obligation of the Company
to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the
Pricing Agreement with respect to the Designated Securities specified therein.
Each Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the initial public offering price of such Designated
Securities, the purchase
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price to the Underwriters of such Designated Securities, the names of the
Underwriters of such Designated Securities, the names of the Representatives of
such Underwriters and the principal amount of such Designated Securities to be
purchased by each Underwriter and shall set forth the date, time and manner of
delivery of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Indenture and
the registration statement and prospectus with respect thereto) the terms of
such Designated Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each
of the Underwriters that:
(a) A registration statement (File No. 333-______________)
in respect of the Securities has been filed with the Securities
and Exchange Commission (the "Commission") in the form heretofore
delivered or to be delivered to the Representatives and, excluding
exhibits to such registration statement, to the Representatives for
each of the other Underwriters, and such registration statement in
such form has been declared effective by the Commission and no stop
order suspending the effectiveness of such registration statement has
been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in
such registration statement being hereinafter called a "Preliminary
Prospectus;" the various parts of such registration statement,
including all exhibits thereto (other than the Statement of
Eligibility Under the Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee, on Form T-1), each as amended, at the
time such part became effective, being hereinafter collectively called
the "Registration Statement;" the prospectus relating to the
Securities and the prospectus supplement relating to any particular
issuance of Designated Securities, in the form in which it has most
recently been filed, or transmitted for filing, with the Commission on
or prior to the date of this Agreement (which prospectus supplement
shall be in all substantive respects in the form furnished to the
Representatives, except to the extent the Representatives otherwise
agree), being hereinafter collectively called the "Prospectus;" any
reference herein to any Preliminary Prospectus or the Prospectus shall
be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Securities
Act of 1933, as amended (the "Act"), as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary Prospectus
or Prospectus shall be deemed to refer to and include any documents
filed after such date under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated by reference in such
amendment or supplement; and any reference to the Prospectus, as
amended or supplemented, shall be deemed to refer to the Prospectus as
amended or supplemented in relation to the applicable Designated
Securities in the form in which it is first filed, or transmitted for
filing, with the Commission pursuant to Rule 424 under the Act,
including any documents incorporated by reference therein as of the
date of such filing or transmission);
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(b) The documents incorporated by reference in the
Prospectus, when they were filed with the Commission, conformed in all
material respects to the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder and none of such
documents contained an untrue statement of material fact required to
be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents are filed with the
Commission, will conform in all material respects to the requirements
of the Exchange Act 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;
(c) Each part of the Registration Statement and the
Prospectus conforms, and any amendments or supplements to the
Registration Statement or the Prospectus will conform, on the date of
filing thereof with the Commission, in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), as applicable, and the rules and
regulations of the Commission thereunder; the Registration Statement
and any amendment thereto, as of the applicable effective date, did
not or will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; the Prospectus and any
supplement thereto, as of the applicable filing date, did not or will
not include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by or
on behalf of an Underwriter of Designated Securities expressly for use
in the Prospectus, as amended or supplemented, relating to such
Securities;
(d) Neither the Guarantor, the Company nor any of their
respective subsidiaries has sustained since the date of the latest
audited consolidated financial statements included or incorporated by
reference in the Prospectus any material 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, resulting in a material adverse
effect on the business, assets, financial position or prospects of the
Guarantor and its subsidiaries taken as a whole, or the Company and
its subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, except as otherwise set forth or contemplated in the
Prospectus: (i) there has not been any material change in the capital
stock or long-term debt of the Guarantor, the Company or any of their
respective subsidiaries, except for the Company's re- classification
from time to time of its short-term indebtedness to long-term
indebtedness and of its long-term indebtedness to short-term
indebtedness; (ii) there has not been any material adverse change, or
any development involving a prospective material adverse change, in or
affecting the business, assets, financial position or prospects of the
Guarantor and its subsidiaries taken as a whole, or the Company and
its subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus; (iii) no event has occurred that would
result in a material write-down in assets; (iv) there have been no
material transactions entered into
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by the Guarantor or the Company, other than those publicly disclosed
or in the ordinary course of business; (v) neither the Guarantor nor
the Company has repurchased any of its outstanding capital stock
except as set forth in or contemplated by the Prospectus; and (vi)
there have been no dividends or distributions of any kind declared,
paid or made by the Guarantor or the Company in respect of its capital
stock except for regular cash dividends paid in the ordinary course of
business;
(e) the Guarantor, the Company and their respective
subsidiaries have indefeasible title in fee simple to all real
property and indefeasible title to all personal property owned by
them, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus or such as are
not material to the business of the Guarantor and its subsidiaries
taken as a whole, or the Company and its subsidiaries taken as a
whole; and any real property and buildings held under lease by the
Guarantor, the Company and their respective subsidiaries are held by
them under leases that are valid, subsisting and in full force and
effect, with such exceptions as are not material to the business of
the Guarantor and its subsidiaries taken as a whole, or the Company
and its subsidiaries taken as a whole;
(f) Each of the Guarantor and the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware, and each subsidiary of the
Guarantor and the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation; each of the Guarantor, the Company and
their respective subsidiaries has full power and authority (corporate
and other) to own its properties and conduct its business as
described, or incorporated by reference, in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction;
(g) Each of the Guarantor and the Company has an
authorized capitalization as set forth, or as incorporated by
reference, in the Prospectus, and all of the outstanding shares of
capital stock of the Guarantor and the Company have been duly and
validly authorized and issued and are fully paid and nonassessable;
and all of the outstanding shares of capital stock of each subsidiary
of the Guarantor and the Company have been duly and validly authorized
and issued, are fully paid and nonassessable and are owned directly or
indirectly by the Guarantor or the Company, free and clear of all
liens, encumbrances, equities or claims affecting transferability or
voting except as set forth in the Prospectus;
(h) The Securities have been duly authorized, and, when
Designated Securities are executed, authenticated, issued and
delivered against payment therefor pursuant to this Agreement, the
Indenture and the Pricing Agreement with respect to such Designated
Securities, such Designated Securities will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company, enforceable against the
Company in accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles, and entitled to the benefits provided by
the Indenture, which has been or will be incorporated by reference as
an exhibit
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to the Registration Statement; the guarantee of the Guarantor with
respect to the securities set forth in Article Three of the Indenture
has been duly authorized, and, when the statement of the Guarantor's
guarantee with respect to the Designated Securities is endorsed on the
certificates representing such Designated Securities in the manner
specified in the Indenture, and when such Designated Securities are
themselves executed, authenticated, issued and delivered against
payment therefor pursuant to this Agreement, the Indenture and the
Pricing Agreement with respect to such Designated Securities, such
statement of the Guarantor's guarantee will have been duly endorsed
thereon and the guarantee will constitute the valid and legally
binding obligation of the Guarantor, enforceable against the Guarantor
in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors rights and to general
equity principles; the Indenture has been duly authorized, executed
and delivered by the Guarantor and the Company and constitutes a valid
and legally binding instrument, enforceable against the Company and,
to the extent specified in Article Three thereof, the Guarantor in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; at the Time of Delivery (as defined in Section 4 hereof),
the Indenture will have been duly qualified under the Trust Indenture
Act; and the Securities and the Indenture will conform in all material
respects to the descriptions thereof in the Prospectus;
(i) The issue and sale of the Securities and the
compliance by the Guarantor and the Company with all of the provisions
of the Securities, the Indenture, this Agreement and any Pricing
Agreement, and the consummation of the transactions herein and therein
contemplated 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 Guarantor, the Company or any of their
respective subsidiaries is a party or by which the Guarantor, the
Company or any of their respective subsidiaries is bound or to which
any of the property or assets of the Guarantor, the Company or any of
their respective subsidiaries is subject, nor will such action result
in any violation of the provisions of the Certificate of
Incorporation, as amended or restated, or the Bylaws of the Guarantor
or the Company or any statute or order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Guarantor, the Company or any of their respective subsidiaries or any
of their 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 Guarantor or the Company of
the other transactions contemplated by this Agreement or any Pricing
Agreement or the Indenture, except such 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,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(j) Other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings pending to
which the Guarantor, the Company or any of their respective
subsidiaries is a party or of which any property of the Guarantor, the
Company or any of their respective subsidiaries is the subject that,
if determined adversely to the
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Guarantor, the Company or any of their respective subsidiaries, would
individually or in the aggregate have a material adverse effect on the
consolidated financial position, stockholders' equity or results of
operations of the Guarantor and its subsidiaries taken as a whole, or
the Company and its subsidiaries taken as a whole; and, to the best of
the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(k) KPMG Peat Marwick LLP, who have certified certain
consolidated financial statements of the Guarantor and its
subsidiaries, are independent public accountants as required by the
Act and the rules and regulations of the Commission thereunder;
(l) The Company has no knowledge of any default in any
material obligation to be performed by any party to any agreement to
which the Guarantor, the Company or any of their respective
subsidiaries is a party, which default or defaults in the aggregate
would have a material adverse effect upon the business, assets,
financial position, or prospects of the Guarantor and its subsidiaries
taken as a whole, or the Company and its subsidiaries taken as a
whole;
(m) The consolidated financial statements of the
Guarantor and its subsidiaries, including accompanying notes, included
or incorporated by reference in the Prospectus, comply in all material
respects with the requirements of the Act and fairly present the
consolidated financial position and the consolidated results of the
operations of the Guarantor and its subsidiaries at the respective
dates and for the respective periods to which they apply, and such
financial statements have been prepared in conformity with generally
accepted accounting principles, consistently applied throughout the
periods involved except as may be expressly stated in the notes
thereto. The summary financial information of the Company and its
subsidiaries included or incorporated by reference in the Prospectus
complies in all material respects with the requirements of the Act.
The financial information and statistical data set forth in the
Prospectus under the caption "Summary of Selected Financial Data" are
fairly presented and prepared on a basis consistent with such
consolidated financial statements, such summary financial information
or the books and records of the Guarantor or the Company, as the case
may be, unless otherwise stated in the Prospectus;
(n) Except as described in the Prospectus, the Guarantor,
the Company and each of their respective subsidiaries have all
necessary licenses, certificates, permits, authorizations, approvals,
rights and orders of and from all governmental agencies or bodies
having jurisdiction over the Guarantor, the Company or any of their
respective subsidiaries to own their respective properties and conduct
their respective businesses as described in the Prospectus, the
failure to possess or the failure to operate in compliance with which
would have a material adverse effect on the business of the Guarantor
and its subsidiaries taken as a whole, or the Company and its
subsidiaries taken as a whole, and neither the Guarantor nor the
Company has received notice of proceedings relating to the revocation
or modification of any such certificate, authority or permit that,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would materially adversely affect the business,
assets, financial position or prospects of the Guarantor and its
subsidiaries taken as a whole, or the Company and its subsidiaries
taken as a whole;
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(o) This Agreement has been duly and validly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company, and the Pricing Agreement with respect to
the Designated Securities, when executed and delivered by the Company,
will constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject,
in each case, as to enforcement, to bankruptcy, insolvency,
reorganization, and other laws of general applicability relating to or
affecting creditors' rights, and to general equity principles, and
except to the extent that rights of indemnification hereunder may be
limited by applicable laws or equity principles;
(p) Except as described in the Prospectus, each of the
Guarantor, the Company and their respective subsidiaries owns or
possesses all of the patents, trademarks, service marks, trade names,
copyrights and licenses and rights with respect to the foregoing,
necessary for the present conduct of its business, without any known
conflict with the rights of others, the result of which conflict would
materially and adversely affect the business, assets, financial
position or prospects of the Guarantor and its subsidiaries taken as a
whole, or the Company and its subsidiaries taken as a whole;
(q) There are no contracts, indentures, mortgages, loan
agreements, notes, bonds, debentures, other evidences of indebtedness,
leases or other agreements or instruments of the Guarantor or the
Company of a character required to be described or referred to in the
Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement that are not described or referred to or
filed as required;
(r) No labor disturbance exists with the employees of the
Guarantor, the Company or any of their respective subsidiaries, or, to
the best of the Company's knowledge, is imminent, that would result in
a material adverse effect upon the Guarantor and its subsidiaries
taken as a whole, or the Company and its subsidiaries taken as a
whole, and the Company has not received notice of any existing or
imminent labor disturbance by the employees of any of its or the
Guarantor's principal suppliers, that might reasonably be expected to
materially adversely affect the business, assets, financial position
or prospects of the Guarantor and its subsidiaries taken as a whole,
or the Company and its subsidiaries taken as a whole;
(s) The conditions to the use of a registration statement
on Form S-3 under the Act, as set forth in the General Instructions to
Form S-3, have been satisfied with respect to the Guarantor, the
Company and the Registration Statement and Prospectus;
(t) Except as provided in the Prospectus, the Company and
the Guarantor (i) do not have any material lending or other
relationships with any banks or lending affiliates of the Underwriters
and (ii) do not intend to use any of the proceeds from the sale of the
Designated Securities hereunder to repay any outstanding debt owed to
any affiliates of the Underwriters; and
(u) Except as provided in the Prospectus, there are no
persons with registration or other similar rights either to have any
securities registered pursuant to the Registration Statement or to
have any securities otherwise registered by the Company under the Act
in connection with or as a result of the execution, delivery and
performance of this Agreement.
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3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release
of such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus, as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in definitive or book-entry
form, as specified in the Pricing Agreement, and in such authorized
denominations and registered in such names as the Representatives may request
upon at least forty-eight hours' prior notice to the Company, shall be
delivered by or on behalf of the Company to the Representatives for the account
of such Underwriter, against payment by such Underwriter or on its behalf of
the purchase price therefor (by wire transfer of immediately available funds to
such bank account or accounts as may be specified by the Company) to the
Company at the time and date of delivery of such Securities or at such other
time and date as the Representatives and the Company may agree upon in writing,
such time and date being called the "Time of Delivery" for such Securities.
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To make no further amendment or any supplement to the
Registration Statement or Prospectus, as amended or supplemented,
after the date of the Pricing Agreement relating to such Securities
and prior to the Time of Delivery of such Securities that shall be
disapproved by the Representatives for such Securities promptly after
reasonable notice thereof; to advise the Representatives promptly of
any such amendment or supplement after such Time of Delivery and
furnish the Representatives with copies thereof; to advise the
Representatives, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed
or become effective or any supplement to the Prospectus or any amended
Prospectus has been filed, or transmitted for filing, and to furnish
you with copies thereof; to file, and to cause the Guarantor to file,
promptly all reports and any definitive proxy or information
statements required to be filed by the Guarantor or the Company with
the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required
in connection with the offering or sale of such Securities; and during
such same period to advise you, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus
or Prospectus, of the suspension of the qualification of such
Securities for offering or sale in any jurisdiction, of the initiation
or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information;
and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or
Prospectus or suspending any such qualification, to use promptly its
best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Securities; provided that, in
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connection therewith, the Company shall not be required to qualify as
a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) To furnish the Underwriters with copies of the
Prospectus, as amended or supplemented, in such quantities as the
Representatives may from time to time reasonably request, and, if the
delivery of a prospectus is required at any time in connection with
the offering or sale of the Securities and if at such time any event
shall have occurred as a result of which the Prospectus, as then
amended or supplemented, would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not
misleading, or, if, for any other reason, it shall be necessary during
such same period to amend or supplement the Prospectus or to file
under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notify the Representatives and, upon their
request, to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many
copies as the Representatives may from time to time reasonably request
of an amended Prospectus or a supplement to the Prospectus that will
correct such statement or omission or effect such compliance;
(d) To make, and to cause the Guarantor to make,
generally available to its security holders as soon as practicable,
but in any event not later than eighteen months after the effective
date of the Registration Statement and of the post-effective amendment
thereto, hereinafter referred to, an earning statement of the
Guarantor and its subsidiaries and of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act
and the rules and regulations of the Commission thereunder (including,
at the option of the Guarantor and the Company, Rule 158);
(e) During the period beginning from the date of the
Pricing Agreement for such Designated Securities and continuing to and
including the earlier of (i) the termination of trading restrictions
for such Designated Securities, as notified to the Company by the
Representatives, and (ii) the Time of Delivery for such Designated
Securities, not to offer, sell, contract to sell or otherwise dispose
of any debt securities of the Company that mature more than one year
after such Time of Delivery and that are substantially similar to such
Designated Securities, without the prior written consent of the
Representatives;
(f) To furnish to the holders of the Securities as soon
as practicable after the end of each fiscal year an annual report
(including a balance sheet and statements of income, stockholders'
equity and cash flows of the Guarantor and its consolidated
subsidiaries certified by independent public accountants) and, as soon
as practicable after the end of each of the first three quarters of
each fiscal year (beginning with the fiscal quarter ending after the
effective date of the Registration Statement) condensed consolidated
financial information of the Guarantor and its subsidiaries for such
quarter in reasonable detail;
(g) During a period of two years from the effective date
of the Registration Statement, to furnish to the Representatives
copies of all reports or other communications (financial or other)
furnished to stockholders, and deliver to the Representatives (i) as
soon as they are available, copies of any reports and financial
statements furnished to or filed with the
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Commission or any national securities exchange on which the Securities
or any class of securities of the Guarantor or the Company is listed
other than registration statements filed under the Act; and (ii) such
additional information concerning the business and financial condition
of the Guarantor or the Company as the Representatives may from time
to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Guarantor and its
subsidiaries or the Company and its subsidiaries, as applicable, are
consolidated in reports furnished to their stockholders generally or
to the Commission), provided such information is prepared in the
ordinary course of business and is not otherwise confidential; and
further provided that the foregoing restriction on access to
information shall not prohibit the Representatives' access to such
information necessary for the defense of any litigation threatened or
filed against the Underwriters relating to this Agreement and the
transactions contemplated hereby; and
(h) to apply in the manner described under "Use of
Proceeds" in the Prospectus, the proceeds it receives from the sale of
the Securities.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Guarantor's and the Company's counsel and
accountants in connection with the registration of the Securities under the Act
and all other expenses in connection with the preparation, printing and filing
of the Registration Statement, any Preliminary Prospectus and the Prospectus
and amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, the Pricing Agreement, the
Indenture, any Blue Sky or legal investment memoranda and any other documents
in connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the reasonable fees and disbursements of counsel in
connection with such qualification and in connection with any Blue Sky or legal
investment surveys; (iv) any fees charged by securities rating services for
rating the Securities; (v) the filing fees incident to any required review, if
any, by the National Association of Securities Dealers, Inc. of the terms of
the sale of the Securities; (vi) the cost of preparing the Securities; (vii)
the fees and expenses of the trustee designated in the Indenture (the
"Trustee") and any agent of the Trustee and the fees and disbursements of
counsel for the Trustee in connection with the Indenture and the Securities;
and (viii) all other costs and expenses incident to the performance of its
obligations hereunder that are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section,
Section 8 and Section 11 hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
7. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement relating to such Designated Securities
shall be subject, in the discretion of the Representatives, to the condition
that all representations and warranties and other statements of the Company
herein are, at and as of the Time of Delivery for such Designated Securities,
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:
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(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of
the Commission shall have been complied with to the reasonable
satisfaction of the Representatives;
(b) ____________________, counsel for the Underwriters,
shall have furnished to the Representatives such opinion as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Cullen M. Godfrey, Vice President, General Counsel
and Secretary of the Guarantor and Vice President and General Counsel
of the Company (as to (i) through (vi) and (ix), (xii) and (xiii)
below) and Thompson & Knight, A Professional Corporation, special
counsel for the Guarantor and the Company (as to (vii), (viii), (x),
(xi) and (xiii) below), shall have furnished to the Representatives
their respective written opinions, dated the Time of Delivery for such
Designated Securities, in form and substance reasonably satisfactory
to the Representatives, to the effect that:
(i) Each of the Guarantor and the Company has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Delaware, with full corporate power and authority to own its
properties and conduct its business as described in the
Prospectus, as amended or supplemented;
(ii) Each of the Guarantor and the Company has
an authorized capitalization as set forth in the Prospectus,
as amended or supplemented, and all of the outstanding shares
of capital stock of the Guarantor and the Company have been
duly and validly authorized and issued and are fully paid and
nonassessable;
(iii) Each of the Guarantor and the Company has
been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws
of each jurisdiction in which the failure to so qualify would
have a material adverse effect upon the Guarantor and its
subsidiaries taken as a whole (such counsel being entitled to
rely in respect of the opinion in this clause upon
certificates issued by various state authorities as deemed
necessary by such counsel);
(iv) Each subsidiary of the Guarantor and the
Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of its
jurisdiction of incorporation; each subsidiary of the
Guarantor and the Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each jurisdiction in which the
failure to so qualify would have a material adverse effect
upon the Guarantor and its subsidiaries taken as a whole (such
counsel being entitled to rely in respect of the opinion in
this clause upon certificates issued by various state
authorities as deemed necessary by such counsel); and all of
the outstanding shares of capital stock of each such
subsidiary have been duly and validly authorized and issued,
are fully paid and nonassessable, and (except for directors'
qualifying shares and except as otherwise set forth in the
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Prospectus) are owned directly or indirectly by the Guarantor
or the Company, free and clear of all liens, encumbrances,
equities or claims affecting transferability or voting;
(v) To the best of such counsel's knowledge and
other than as set forth or contemplated, or incorporated by
reference, in the Prospectus, as amended or supplemented,
there are no legal or governmental proceedings pending to
which the Guarantor, the Company or any of their respective
subsidiaries is a party or of which any property of the
Guarantor, the Company or any of their respective subsidiaries
is the subject which, if determined adversely to the
Guarantor, the Company or any of their respective
subsidiaries, would individually or in the aggregate have a
material adverse effect on the business, assets, financial
position or prospects of the Guarantor 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;
(vi) This Agreement and the Pricing Agreement
with respect to the Designated Securities have been duly
authorized, executed and delivered by the Company and each
constitutes a valid and legally binding obligation of the
Company, enforceable against the Company in accordance with
their respective terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors'
rights and to general equity principles that may limit the
availability of certain remedies (including specific
performance), and except to the extent that rights of
indemnification hereunder may be limited by applicable law or
equity principles;
(vii) The Designated Securities have been duly
authorized, executed, authenticated, issued and delivered and
constitute valid and legally binding obligations of the
Company and, to the extent specified in Article Three of the
Indenture, of the Guarantor, and are entitled to the benefits
provided by the Indenture, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors'
rights and to general equity principles that may limit the
availability of certain remedies (including specific
performance); and the Designated Securities and the Indenture
conform in all material respects to the descriptions thereof
in the Prospectus, as amended or supplemented;
(viii) The Indenture has been duly authorized,
executed and delivered by the Company and the Guarantor and
constitutes a valid and legally binding instrument enforceable
against the Company and, to the extent specified in Article
Three thereof, the Guarantor in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general
equity principles that may limit the availability of certain
remedies (including specific performance); and the Indenture
has been duly qualified under the Trust Indenture Act;
(ix) The issue and sale of the Designated
Securities and the compliance by the Guarantor and the Company
with all of the provisions of the Designated Securities, the
Indenture, and this Agreement and the Pricing Agreement and
the consummation of the
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transactions herein and therein contemplated 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
known to such counsel to which the Guarantor, the Company or
any of their respective subsidiaries is a party or by which
the Guarantor, the Company or any of their respective
subsidiaries is bound or to which any of the property or
assets of the Guarantor, the Company or any of their
respective subsidiaries is subject, nor will such action
result in any violation of the provisions of the Certificate
of Incorporation, as amended or restated, or the Bylaws of the
Guarantor or the Company or any statute or order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Guarantor, the Company or any of their
respective subsidiaries or any of their properties;
(x) To the best of such counsel's knowledge, no
consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency
or body is required for the issue and sale of the Designated
Securities or the consummation of the other transactions
contemplated by this Agreement, the Pricing Agreement or the
Indenture, except such as have been obtained under the Act and
the Trust Indenture 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 Designated
Securities by the Underwriters;
(xi) The Registration Statement is effective
under the Act, and, to the best of such counsel's knowledge,
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for a stop order
are pending or threatened under the Act;
(xii) The documents incorporated by reference in
the Prospectus, as amended or supplemented (other than the
financial statements, statistical data 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 Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission
thereunder; such counsel has no reason to believe that any of
such documents, when they became effective or were so filed,
as the case may be (other than the financial statements,
statistical data and related schedules therein, as to which
such counsel need express no belief), contained, in the case
of a registration statement that became effective under the
Act, an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the
statements therein not misleading, and, in the case of other
documents that were filed under the 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 light of the circumstances under
which they were made when such documents were so filed, not
misleading; and such counsel does not know of 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
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the Prospectus or required to be described in the Registration
Statement or the Prospectus that are not filed or incorporated
by reference or described as required; and
(xiii) The Registration Statement and the
Prospectus (other than the financial statements, statistical
data and related schedules therein, as to which such counsel
need express no opinion), at the effective date thereof and at
the Time of Delivery for the Designated Securities complied as
to form in all material respects with the requirements of the
Act and the Trust Indenture Act, as applicable, and the rules
and regulations thereunder; such counsel has no reason to
believe that, as of the effective date of the Registration
Statement, the Registration Statement (other than the
financial statements, statistical data and related schedules
therein, as to which such counsel need express no belief)
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 the Time of Delivery, the Prospectus (or, as of
its date, any amendment or supplement thereto made by the
Company prior to the Time of Delivery) (other than the
financial statements, statistical data and related schedules
therein, as to which such counsel need express no belief)
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.
(d) On the date of the Pricing Agreement for such
Designated Securities and at the Time of Delivery for such
Designated Securities, KPMG Peat Marwick LLP, who have
certified the consolidated financial statements of the Guarantor
and its subsidiaries included or incorporated by reference in the
Registration Statement, shall have furnished to the Representatives
a letter, dated as of the date of such Pricing Agreement, and a
letter dated such Time of Delivery, respectively, to the effect set
forth in Annex II hereto and, with respect to such letter dated
such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance
reasonably satisfactory to the Representatives;
(e) (i) Neither the Guarantor, the Company nor any of
their respective subsidiaries shall have sustained since the date
of the latest audited consolidated financial statements included or
incorporated by reference in the Prospectus, as amended or
supplemented, 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, otherwise than as set forth or
contemplated in the Prospectus, as amended or supplemented, and
(ii) since the respective dates as of which information is given in
the Prospectus, as amended or supplemented, there shall not have
been any material change in the capital stock (other than through
exercise of employee stock options) or long-term debt of the
Guarantor and its subsidiaries taken as a whole, or the Company and
its subsidiaries taken as a whole (other than borrowings and
repayments made in the ordinary course of business), or any change,
or any development involving a prospective change, in or affecting
the general affairs, management, financial position, stockholders'
equity or results of operations of the Guarantor, the Company and
their respective subsidiaries, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such
case described in clause (i) or (ii), is in the reasonable judgment
of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public
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offering or delivery of the Designated Securities on the terms and
in the manner contemplated in the Prospectus, as amended or
supplemented;
(f) Subsequent to the date of the Pricing Amendment
relating to the Designated Securities, (i) no downgrading shall
have occurred in the rating accorded the Guarantor's or the
Company's debt securities by any "nationally recognized statistical
rating organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act and (ii) no such
organization shall have publicly announced that it has under
surveillance or review (other than an announcement with positive
implications of a possible upgrading), its rating of the Designated
Securities;
(g) Subsequent to the date of the Pricing Amendment
relating to the Designated Securities, there shall not have
occurred any of the following: (i) trading in securities generally
on the New York Stock Exchange, the American Stock Exchange or the
over-the-counter market shall have been suspended or limited, or
minimum prices shall have been established on either of such
exchanges or such market by any regulatory body or governmental
authority having jurisdiction, or trading in securities of the
Company or the Guarantor on any exchange or in the over-the-counter
market shall have been suspended; (ii) a general moratorium on
commercial banking activities in New York declared by either
federal or New York State authorities; or (iii) the engagement by
the United States in hostilities that have resulted in the
declaration, on or after the date of such Pricing Agreement, of a
national emergency or war if the effect of any such event specified
in this clause (iii), in the reasonable judgment of the
Representatives, makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Designated
Securities on the terms and in the manner contemplated in the
Prospectus, as amended or supplemented; and
(h) The Company shall have furnished or caused to be
furnished to the Representatives at the Time of Delivery for the
Designated Securities, certificates of officers of the Company
satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of
such Time of Delivery, as to the performance by the Company of all
of its obligations hereunder to be performed at or prior to such
Time of Delivery, as to the matters set forth in subsections (a)
and (e) of this Section and as to such other matters as the
Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each
Underwriter, its officers and employees and each person, if any, who
controls an Underwriter within the meaning of the Act (collectively referred to
for the purposes of this Section 8 as an Underwriter), and each affiliate (as
defined in Rule 144(a)(i) of the rules and regulations of the Commission under
the Act) of the Underwriter, its directors, officers and employees and each
person, if any, who controls such affiliates, against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement or the Prospectus, as amended or supplemented, 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
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not misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim; 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
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement or the Prospectus, as amended or supplemented, in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter expressly for use therein; provided
further, that the Company shall not be liable to the Underwriters under the
indemnity agreement in this subsection (a) with respect to any Preliminary
Prospectus or any preliminary prospectus supplement to the extent that any such
loss, claim, damage or liability of such Underwriter results from the fact that
such Underwriter sold Securities to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the
Prospectus or the Prospectus as then amended or supplemented if the Company had
previously furnished copies thereof to such Underwriter.
(b) Each Underwriter will indemnify and hold harmless the Company, its
officers and employees and each person, if any, who controls the Company within
the meaning of the Act (collectively referred to for the purposes of this
Section 8 as the Company), and each affiliate (as defined in Rule 144(a)(i) of
the rules and regulations of the Commission under the Act) of the Company, its
directors, officers and employees and each person, if any, who controls such
affiliates, against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement or the Prospectus, as amended or
supplemented, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement
or the Prospectus, as amended or supplemented, in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Underwriter expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim with respect thereto 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 that it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall 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 reasonably satisfactory to such indemnified party, and, after
notice from the indemnifying party to the such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable
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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; provided, however, that the Underwriters shall have the
right to employ separate counsel to represent the Underwriters who may be
subject to liability arising out of any claim in respect of which indemnity may
be sought by the Underwriters under this Section 8, and in that event the fees
and expenses of such separate counsel shall be paid by the Company.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriters of the Designated Securities on the other from the offering of
such Designated Securities. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand
and the Underwriters of the Designated Securities on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and such Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by such Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company on the one
hand or such Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions with respect thereto)
referred to above in this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the applicable Designated 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 Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of
Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Securities and not joint.
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(e) The obligations of the Company under this Section 8 shall be in
addition to any liability that the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability that
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation
to purchase the Designated Securities that it has agreed to purchase under the
Pricing Agreement relating to such Designated Securities, the Representatives
may in their discretion arrange for themselves or another party or other
parties to purchase such Designated Securities on the terms contained herein.
If within thirty-six hours after such default by any Underwriter, the
Representatives do not arrange for the purchase of such Designated Securities,
then the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to the
Representatives to purchase such Designated Securities on such terms. In the
event that, within the respective prescribed periods, the Representatives
notify the Company that they have so arranged for the purchase of such
Designated Securities, or the Company notifies the Representatives that it has
so arranged for the purchase of such Designated Securities, the Representatives
or the Company shall have the right to postpone the Time of Delivery for such
Designated Securities for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, as amended or supplemented, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus that, in the opinion
of the Representatives, may thereby be made necessary. The term "Underwriter"
as used in this Agreement shall include any person substituted under this
Section with like effect as if such person had originally been a party to this
Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives or the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities that remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require
each nondefaulting Underwriter to purchase the principal amount of Designated
Securities that such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each
nondefaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities that such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities that remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described
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in subsection (b) above to require nondefaulting Underwriters to purchase
Designated Securities of a defaulting Underwriter or Underwriters, then the
Pricing Agreement relating to such Designated Securities shall thereupon
terminate, without liability on the part of any nondefaulting Underwriter or
the Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 6 hereof and the indemnity and contribution
agreements in Section 8 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Section 6 and Section 8 hereof; but, if for any other
reason Designated Securities are not delivered by or on behalf of the Company
as provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Section 6 and Section 8 hereof; and further provided,
however, that notwithstanding the foregoing, the Company shall have no
obligation to reimburse the Underwriters as described above if Designated
Securities are not delivered by or on behalf of the Company as provided herein
because of the failure of counsel for the Underwriters to furnish the opinion
or opinions contemplated by Section 7(b) hereof, or because of the occurrence
of any of the events described in Section 7(f) or (g) hereof. The Company
shall not in any event be liable to any Underwriter for loss of anticipated
profits from the transactions contemplated by this Agreement, the Pricing
Agreement or otherwise.
12. In all dealings hereunder, the Representatives shall act on behalf
of each of the Underwriters, and the parties hereto shall be entitled to act
and rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by such Representatives jointly or by such of the
Representatives, if any, as may be designated for such purpose in the Pricing
Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing or by telegram if promptly confirmed in writing, and if to the
Underwriters shall be sufficient in all respects if delivered or sent by
registered mail to the address of the Representatives, as set forth in the
Pricing Agreement; and if to the Company shall be sufficient in all respects if
delivered or sent by registered mail to the address of the Company set forth in
the Registration Statement, Attention: Vice President, Chief Financial Officer
and Treasurer; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by registered
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mail to such Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Company by the Representatives upon request.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company and, to the
extent provided in Section 8 and Section 10 hereof, the officers and directors
of the Company and each person who controls the Company or any Underwriter, and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any rights under or by virtue of this
Agreement or any Pricing Agreement. No purchaser of any of the Securities from
any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of this Agreement.
15. This Agreement and each Pricing Agreement shall be construed in
accordance with the laws of the State of New York.
16. This Agreement and each Pricing 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 two (2) counterparts hereof.
Very truly yours,
FINA OIL AND CHEMICAL COMPANY
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Accepted as of the date hereof
at Dallas, Texas:
[Name and address of Representative(s)]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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ANNEX I
PRICING AGREEMENT
[Name and address of Representative(s)]
_________________, 199___
Dear Sirs:
Fina Oil and Chemical Company (the "Company") proposes, subject to the
terms and conditions stated herein and in the Underwriting Agreement, dated
__________________, 199__ (the "Underwriting Agreement"), to issue and sell to
the Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities"). Each of the
provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be part of this Pricing Agreement to the
same extent as if such provisions had been set forth in full herein, and each
of the representations and warranties set forth therein shall be deemed to have
been made at and as of the date of this Pricing Agreement, except that each
representation and warranty with respect to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as
therein defined), and also a representation and warranty as of the date of this
Pricing Agreement in relation to the Prospectus, as amended or supplemented,
relating to the Designated Securities that are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in the provisions
of the Underwriting Agreement so incorporated by reference shall be deemed to
refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Representatives
designated to act on behalf of the Representatives and on behalf of each of the
Underwriters of the Designated Securities pursuant to Section 12 of the
Underwriting Agreement and the address of the Representatives referred to in
such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed, or in the case of
a supplement, transmitted for filing, with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time
and place and at the purchase price to the Underwriters set forth in Schedule
II hereto, the principal amount of Designated Securities set forth opposite the
name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us two (2) counterparts hereof, and upon acceptance hereof by
each of the
23
Underwriters, this Pricing Agreement and such acceptance hereof, including the
provisions of the Underwriting Agreement incorporated herein by reference,
shall constitute a binding agreement between each of the Underwriters and the
Company. It is understood that your acceptance of this Pricing Agreement on
behalf of each of the Underwriters is or will be pursuant to the authority set
forth in a form of Agreement among Underwriters, the form of which shall be
submitted to the Company for examination, upon request, but without warranty on
the part of the Representatives as to the authority of the signers thereof.
Very truly yours,
FINA OIL AND CHEMICAL COMPANY
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Accepted as of the date hereof
at Dallas, Texas:
[Name and address of Representative(s)]
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
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SCHEDULE I
Principal
Amount of
Securities
to be
Underwriters Purchased
------------ ---------
$
-----------------
Total . . . . . . . . . . . . . . . . . . . . . . . . . .$ =================
25
SCHEDULE II
Title of Designated Securities:
____% [Senior Debt Securities] due ____________
Aggregate principal amount:
$__________________
Price to Public:
____ % of the principal amount of the Designated Securities,
plus accrued interest from ___________ to ____________
Purchase Price by Underwriters:
____% of the principal amount of the Designated Securities,
plus accrued interest from ___________ to ____________
Specified funds for payment of purchase price:
Wire transfer of immediately available funds
Indenture:
Indenture, dated as of ___________, 19___, between the Company and Texas
Commerce Bank National Association, as Trustee
Maturity:
Interest Rate:
_____%
Interest Payment Dates:
[months and dates]
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Redemption Provisions:
[Provisions for redemption]
Sinking Fund Provisions:
[The Designated Securities are entitled to the benefit of a sinking fund
to retire $________ principal amount of Designated Securities on
_____________ in each of the years _____ through _______ at 100% of their
principal amount plus accrued interests] [, together with [cumulative]
[noncumulative] redemptions at the option of the Company to retire an
additional $__________________ principal amount of Designated Securities
in the years _______ through ______ at 100% of their principal amount
plus accrued interest].
Time of Delivery:
Closing Location:
Name and address of Representatives:
Designated Representatives:
Address for Notices, etc.:
Book-Entry Provisions:
[Provisions for book-entry registration
of the Designated Securities]
[Other terms]:
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ANNEX II
DESCRIPTION OF COMFORT LETTER
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Guarantor and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the consolidated financial statements
and any supplementary financial information and schedules examined by
them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance
with standards established by the American Institute of Certified Public
Accountants of the consolidated interim financial statements, selected
financial data, pro forma financial information and/or condensed
financial statements derived from audited consolidated financial
statements of the Guarantor and its subsidiaries for the periods
specified in such letter, as indicated in their reports thereon, copies
of which have been furnished to the representatives of the Underwriters
(the "Representatives");
(iii) In their opinion, the selected financial information with
respect to the consolidated results of operations and financial position
of the Guarantor for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Guarantor's Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for such
five fiscal years that were included or incorporated by reference in the
Guarantor's Annual Reports on Form 10-K for such fiscal years;
(iv) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited consolidated financial
statements and other information referred to below, a reading of the
latest available interim consolidated financial statements of the
Guarantor and its subsidiaries, inspection of the minute books of the
Guarantor and its subsidiaries since the date of the latest audited
consolidated financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Guarantor and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements
of changes in financial position included or incorporated by
reference in the Guarantor's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to
form in all material
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respects with the applicable accounting requirements of the
Exchange Act as it applies to Form 10-Q and the related
published rules and regulations thereunder or are not in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with the basis for the
audited consolidated statements of income, consolidated balance
sheets and consolidated statements of changes in financial
position included or incorporated by reference in the
Guarantor's Annual Report on Form 10-K for the most recent
fiscal year;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree with
the corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements
included or incorporated by reference in the Guarantor's Annual
Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements that were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in clause (B)
were not determined on a basis substantially consistent with the
basis for the audited consolidated financial statements included
or incorporated by reference in the Guarantor's Annual Report on
Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the
published rules and regulations thereunder or the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior
to the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital
stock upon exercise of options and stock appreciation rights,
upon earn-outs of performance shares and upon conversions of
convertible securities, in each case that were outstanding on
the date of the latest balance sheet included or incorporated by
reference in the Prospectus) or any increase in the consolidated
long-term debt of the Guarantor and its subsidiaries, or any
decreases in consolidated net current assets or net assets or
other items specified by the Representatives, or any increases
in any items specified by the Representatives, in each case as
compared with amounts shown in the latest consolidated balance
sheet included or included or incorporated by reference in the
Prospectus, except in each case for changes, increases or
decreases that the Prospectus discloses have occurred or may
occur or that are described in such letter; and
(F) for the period from the date of the latest
consolidated financial statements included or incorporated by
reference in the Prospectus to the specified date referred
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to in clause (E), there were any decreases in consolidated net
revenues or operating profit or the total or per share amounts
of consolidated net income or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable
period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in
each case for increases or decreases that the Prospectus
discloses have occurred or may occur or that are described in
such letter; and
(v) In addition to the examination referred to in their
report(s) included or incorporated by reference in the Prospectus and the
limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (iv) above, they have
carried out certain specified procedures, not constituting an examination
in accordance with generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by the
Representatives that are derived from the general accounting records of
the Guarantor and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference) or in Part II of, or in
exhibits and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the
Prospectus specified by the Representatives, and have compared certain of
such amounts, percentages and financial information with the accounting
records of the Guarantor and its subsidiaries and have found them to be
in agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for
such Designated Securities.
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