5,500,000 Shares of Common
Stock
Lehman Brothers
Inc .
Goldman, Sachs &
Co .
As Representatives of the several
Underwriters named in Schedule I
attached hereto
c/o Lehman
Brothers Inc.
745 Seventh Avenue
New York, New York 10019
c/o Goldman,
Sachs & Co.
85 Broad Street
New York, New York 10004
Atmos
Energy Corporation, a Texas and Virginia corporation (the “
Company ”), proposes to sell 5,500,000 shares (the
“ Firm Stock ”) of the Company’s common
stock, no par value (the “ Common Stock ”). In
addition, the Company proposes to grant to the underwriters (the
“ Underwriters ”) named in
Schedule I attached to this agreement (this “
Agreement ”) an option to purchase up to 825,000
additional shares of the Common Stock on the terms set forth in
Section 2 (the “ Option Stock ”). The Firm
Stock and the Option Stock, if purchased, are hereinafter
collectively called the “ Stock .” This is to
confirm the agreement concerning the purchase of the Stock from the
Company by the Underwriters.
1.
Representations, Warranties and Agreements of the Company .
The Company represents, warrants and agrees that:
(a) A registration
statement on Form S-3, including a base prospectus relating to the
Stock (i) has been prepared by the Company in conformity with
the requirements of the Securities Act of 1933, as amended (the
“ Securities Act ”), and the rules and
regulations (the “ Rules and Regulations ”) of
the Securities and Exchange Commission (the “
Commission ”) thereunder; (ii) has been filed
with the Commission under the Securities Act; and (iii) is
effective under the Securities Act. Copies of the
Registration
Statement (as
defined below) have been delivered by the Company to you as the
representatives (the “ Representatives ”) of the
Underwriters. As used in this Agreement:
(i) “
Applicable Time ” means 5:45 p.m. (New York City time)
on the date of this Agreement;
(ii) “
Effective Date ” means any date as of which any part
of the Registration Statement became effective under the Securities
Act in accordance with the Rules and Regulations;
(iii) “
Issuer Free Writing Prospectus ” means any “free
writing prospectus” (as defined in Rule 405 of the Rules
and Regulations) prepared by or on behalf of the Company or used or
referred to by the Company in connection with the offering of the
Stock;
(iv) “
Preliminary Prospectus ” means the base prospectus
included in the Registration Statement, together with any
preliminary prospectus supplement relating to the Stock filed with
the Commission pursuant to Rule 424(b) of the Rules and
Regulations;
(v) “
Pricing Disclosure Package ” means, as of the
Applicable Time, the most recent Preliminary Prospectus, together
with any Issuer Free Writing Prospectus filed or used by the
Company on or before the Applicable Time as permitted by this
Agreement, other than a road show that is an Issuer Free Writing
Prospectus under Rule 433 of the Rules and
Regulations;
(vi) “
Prospectus ” means the base prospectus included in the
Registration Statement, together with the final prospectus
supplement relating to the Stock filed with the Commission pursuant
to Rule 424(b) of the Rules and Regulations; and
(vii) “
Registration Statement ” means, the registration
statement described above, as amended as of the Effective Date for
such part, including the Prospectus and all exhibits to such
registration statement and any document incorporated by reference
therein.
Any reference
to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents incorporated by reference
therein pursuant to Form S-3 under the Securities Act as of the
date of such Preliminary Prospectus or the Prospectus, as the case
may be. Any reference to the “ most recent Preliminary
Prospectus ” shall be deemed to refer to the base
prospectus included in the Registration Statement, together with
the latest preliminary prospectus supplement relating to the Stock
filed with the Commission pursuant to Rule 424(b) prior to or on
the date hereof (including, for purposes hereof, any documents
incorporated by reference therein prior to or on the date hereof).
Any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include any document filed under the Securities Exchange Act of
1934, as amended (the “ Exchange Act ”), after
the date of such Preliminary Prospectus or the Prospectus, as the
case may be, and incorporated by
2
reference in
such Preliminary Prospectus or the Prospectus, as the case may be;
and any reference to any amendment to the Registration Statement
shall be deemed to include any annual report of the Company on Form
10-K filed with the Commission pursuant to Section 13(a) or 15(d)
of the Exchange Act after the Effective Date that is incorporated
by reference in the Registration Statement. The Commission has not
issued any stop order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending the
effectiveness of the Registration Statement, and no proceeding or
examination for such purpose has been instituted or, to the
knowledge of the Company, threatened by the Commission. The
Commission has not notified the Company of any objection to the use
of the form of the Registration Statement.
(b) At the
time of filing the Registration Statement and, if applicable, at
the time of the most recent amendment thereto for purposes of
complying with Section 10(a)(3) of the Securities Act, the
Company was a “well-known seasoned issuer” (as defined
in Rule 405 of the Rules and Regulations) eligible to use Form
S-3 for the offering of the Stock, including not having been an
“ineligible issuer” (as defined in Rule 405 of the
Rules and Regulations) at any such time. The Registration Statement
is an “automatic shelf registration statement” (as
defined in Rule 405 of the Rules and Regulations) and was
filed not earlier than the date that is three years prior to the
applicable Delivery Date (as defined in Section 4).
(c) The
Registration Statement conformed and will conform in all material
respects on the Effective Date and on the applicable Delivery Date,
and any amendment to the Registration Statement filed after the
date hereof will conform in all material respects when filed, to
the requirements of the Securities Act and the Rules and
Regulations. The Preliminary Prospectus conformed, and the
Prospectus will conform, in all material respects when filed with
the Commission pursuant to Rule 424(b) and on the applicable
Delivery Date to the requirements of the Securities Act and the
Rules and Regulations. The documents incorporated by reference in
any Preliminary Prospectus or the Prospectus conformed, and any
further documents so incorporated will conform, when filed with the
Commission, in all material respects to the requirements of the
Exchange Act or the Securities Act, as applicable, and the rules
and regulations of the Commission thereunder.
(d) The
Registration Statement did not, as of the Effective Date, contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; provided that no
representation or warranty is made as to information contained in
or omitted from the Registration Statement in reliance upon and in
conformity with written information furnished to the Company
through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein, which information is specified
in Section 8(e).
(e) The
Prospectus will not, as of its date and on the applicable Delivery
Date, 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, in the light of the circumstances
under which they were made, not misleading; provided that no
representation or warranty is made as to information contained in
or omitted from the Prospectus in reliance upon and in conformity
with written information furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in
Section 8(e).
3
(f) The
documents incorporated by reference in any Preliminary Prospectus
or the Prospectus did not, and any further documents filed and
incorporated by reference therein will not, when filed with the
Commission, 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, in the light of the circumstances
under which they were made, not misleading. There are no contracts
or documents which are required to be described in the Registration
Statement, the Prospectus or the documents incorporated by
reference therein or to be filed as exhibits thereto which have not
been so described and filed as required.
(g) The
Pricing Disclosure Package did not, as of the Applicable Time,
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, in the light of the circumstances under
which they were made, not misleading, except that the price of the
Stock and the number of shares of Stock issued will be included on
the cover page of the Prospectus; provided that no
representation or warranty is made as to information contained in
or omitted from the Pricing Disclosure Package in reliance upon and
in conformity with written information furnished to the Company
through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein, which information is specified
in Section 8(e).
(h) Each
Issuer Free Writing Prospectus (including, without limitation, any
road show that is a free writing prospectus under Rule 433),
when considered together with the Pricing Disclosure Package as of
the Applicable Time, did 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, in the
light of the circumstances under which they were made, not
misleading, except that the price of the Stock and number of shares
of Stock to be issued will be included on the cover page of the
Prospectus.
(i) Each
Issuer Free Writing Prospectus conformed or will conform in all
material respects to the requirements of the Securities Act and the
Rules and Regulations on the date of first use, and the Company has
complied with any filing requirements applicable to such Issuer
Free Writing Prospectus pursuant to the Securities Act and the
Rules and Regulations. Each Issuer Free Writing Prospectus does not
and will not conflict with the information contained in the
Registration Statement, the most recent Preliminary Prospectus or
the Prospectus. The Company has not made any offer relating to the
Stock that would constitute an Issuer Free Writing Prospectus
without the prior written consent of the Representatives. The
Company has retained in accordance with the Rules and Regulations
all Issuer Free Writing Prospectuses that were not required to be
filed pursuant to the Rules and Regulations.
(j) The
Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Texas
and the Commonwealth of Virginia and has corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in the most recent Preliminary Prospectus
and to enter into and perform its obligations under this Agreement;
and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a material adverse change, or a
development known to the Company involving a prospective
material
4
adverse change,
in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business (a “ Material Adverse
Effect ”).
(k) Each
“significant subsidiary” (as such term is defined in
Rule 405 of the Securities Act) of the Company (each a “
Subsidiary ” and, collectively, the “
Subsidiaries ”) (a) has been duly organized and
is validly existing as an entity in good standing under the laws of
the jurisdiction of its formation, (b) has corporate or
limited liability company power and authority, as applicable, to
own, lease and operate its properties and to conduct its business
as described in the most recent Preliminary Prospectus and is duly
qualified as a foreign entity to transact business and is in good
standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure so to qualify
or to be in good standing would not result in a Material Adverse
Effect. The only Subsidiaries of the Company are the subsidiaries
listed on Schedule II and the Company does not own or control,
directly or indirectly, any corporation, association or other
entity other than the subsidiaries listed on
Schedule III.
(l) The
authorized, issued and outstanding capital stock of the Company is
as set forth in each of the most recent Preliminary Prospectus and
the Prospectus under the caption “Capitalization”
(except for subsequent issuances, if any, pursuant to reservations,
agreements, acquisitions or employee benefit plans each referred to
in each of the most recent Preliminary Prospectus and the
Prospectus or pursuant to the exercise of options or share unit
awards, each referred to in each of the most recent Preliminary
Prospectus and the Prospectus). The shares of issued and
outstanding capital stock of the Company have been duly authorized
and validly issued and are fully paid and non-assessable; none of
the outstanding shares of capital stock of the Company was issued
in violation of the preemptive or other similar rights of any
securityholder of the Company.
(m) All of
the issued and outstanding capital stock or limited liability
company membership interests, as the case may be, of each
Subsidiary have been duly authorized and validly issued, are fully
paid and non-assessable and are owned by the Company, directly or
through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity except for
such liens, encumbrances, equities or claims as would not, in the
aggregate, reasonably be expected to have a Material Adverse
Effect; none of the outstanding shares of capital stock or limited
liability company membership interests, as the case may be, of any
Subsidiary was issued in violation of the preemptive or similar
rights of any securityholder of such Subsidiary.
(n) The Stock
has been duly authorized by the Company for issuance and sale to
the Underwriters pursuant to the terms of this Agreement and, when
issued and delivered by the Company pursuant to this Agreement
against payment of the consideration set forth herein, will be
validly issued, fully paid and non-assessable; the Stock conforms
to all statements relating thereto contained in each of the most
recent Preliminary Prospectus and the Prospectus and such
description conforms to all the rights set forth in the instruments
defining the same; no holder of the Stock will be subject to
personal liability by reason of being such a holder; and the
issuance of the Stock is not subject to the preemptive or other
similar rights of any securityholder of the Company.
5
(o) The
Company has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement. This
Agreement has been duly and validly authorized, executed and
delivered by the Company.
(p) Neither
the Company nor any of its subsidiaries is in violation of its
charter, bylaws or other organizational documents or in default in
the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound,
or to which any of the property or assets of the Company or any
subsidiary is subject (collectively, “ Agreements and
Instruments ”) except for such defaults that would not
result in a Material Adverse Effect; and the execution, delivery
and performance of this Agreement and any other agreement or
instrument entered into or issued or to be entered into or issued
by the Company in connection with the consummation of the
transactions contemplated in each of the most recent Preliminary
Prospectus and the Prospectus (including the issuance and sale of
the Securities and the use of the proceeds from the sale of the
Securities as described in each of the most recent Preliminary
Prospectus and the Prospectus under the caption “Use of
Proceeds”) and compliance by the Company with its obligations
hereunder and thereunder have been duly authorized by all necessary
corporate or other action on the part of the Company and any of the
subsidiaries and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or
any subsidiary pursuant to, the Agreements and Instruments (except
for such conflicts, breaches or defaults or liens, charges,
encumbrances or a Repayment Event that would not result in a
Material Adverse Effect), nor will such action result in any
violation of (i) the provisions of the charter, bylaws or
other organizational documents of the Company or any subsidiary or
(ii) any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality
or court, domestic or foreign, having jurisdiction over the Company
or any subsidiary or any of their assets, properties or operations
except, with respect to (ii), as would not result in a Material
Adverse Effect. As used herein, a “ Repayment Event
” means any event or condition which gives the holder of any
note, debenture or other evidence of indebtedness (or any person
acting on such holder’s behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any subsidiary.
(q) No labor
dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is
imminent, and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its or any
subsidiary’s principal suppliers, manufacturers, customers or
contractors, which, in either case, may reasonably be expected to
result in a Material Adverse Effect.
(r) There is
no action, suit, proceeding, inquiry or investigation before or
brought by any court or governmental agency or body, domestic or
foreign, now pending against, or, to the knowledge of the Company,
threatened against or affecting the Company or any of its
subsidiaries, which is required to be disclosed in the most recent
Preliminary Prospectus (other than as disclosed therein), or which
might reasonably be expected to result in a Material Adverse
Effect, or which might reasonably be expected to affect the
properties, assets or operations of the
6
Company and its
subsidiaries, except what does not result in a Material Adverse
Effect, or the consummation of the transactions contemplated in
this Agreement or the performance by the Company and its
subsidiaries of its obligations hereunder.
(s) The
Company and each of its Subsidiaries own or possess or have the
right to use, or can acquire on reasonable terms, adequate patents,
patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual
property (collectively, “ Intellectual Property
”) necessary to carry on the business now operated by them
the absence of which would have a Material Adverse Effect, and
neither the Company nor any of its subsidiaries has received any
notice or is otherwise aware of any infringement of or conflict
with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest
of the Company or any of its subsidiaries therein, and which
infringement, conflict, invalidity or inadequacy would result in a
Material Adverse Effect.
(t) There
have been issued and, at the Applicable Time and the Closing Time,
there shall be in full force and effect orders or authorizations of
the regulatory authorities of the States of Colorado, Georgia,
Illinois, Kentucky and Virginia respectively, authorizing the
issuance and sale of the Stock on terms herein set forth or
contemplated and no other filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of,
any court or governmental authority or agency is necessary or
required for the performance by the Company of its obligations
hereunder, in connection with the offering, issuance or sale of the
Stock hereunder or the consummation of the transactions
contemplated by this Agreement by the Company, except such as have
been already obtained or as may be required under the Securities
Act or the Rules and Regulations or state securities or blue sky
laws.
(u) The
Company and its subsidiaries possess such permits, licenses,
approvals, consents, and other authorizations (collectively,
“ Governmental Licenses ”) issued by the
appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them,
except where the failure to do so would not have a Material Adverse
Effect; the Company and its subsidiaries are in compliance with the
terms and conditions of all such Governmental Licenses, except
where the failure so to comply would not, singly or in the
aggregate, have a Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, except when the
invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have
a Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, would result in a Material Adverse
Effect.
(v) There are
no persons or entities with registration rights or other similar
rights to have any securities registered under the Registration
Statement who have not properly waived such rights in connection
with the securities registered pursuant to the Registration
Statement and in connection with this offering of Stock.
(w) The
Company and its subsidiaries have good title to all real property
owned by the Company and its subsidiaries and good title to all
other properties owned by them, in each
7
case, free and
clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as
(a) are described in the most recent Preliminary Prospectus or
(b) would not singly or in the aggregate have a Material
Adverse Effect. All of the leases and subleases of the Company and
its subsidiaries under which the Company or any of its subsidiaries
holds properties described in the most recent Preliminary
Prospectus are in full force and effect, except as would not result
in a Material Adverse Effect.
(x) The
Company has not sold or issued any securities that would be
integrated with the offering of the Stock contemplated by this
Agreement pursuant to the Securities Act, the Rules and Regulations
or the interpretations thereof by the Commission.
(y) The
financial statements of the Company included or incorporated by
reference in the Registration Statement, the most recent
Preliminary Prospectus and the Prospectus, together with the
related schedules and notes, present fairly in all material
respects the financial position of the Company and its consolidated
subsidiaries at the dates indicated and the statement of
operations, stockholders’ equity and cash flows of the
Company and its consolidated subsidiaries for the periods
specified; said financial statements have been prepared in
conformity with generally accepted accounting principles (“
GAAP ”) applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, included in the
Registration Statement and incorporated by reference in the most
recent Preliminary Prospectus and the Prospectus with respect to
the Company, when considered in relation to the financial
statements taken as a whole, present fairly, in all material
respects in accordance with GAAP, the financial information set
forth therein. The selected financial data and the summary
financial information included or incorporated by reference in the
most recent Preliminary Prospectus and the Prospectus present
fairly, in all material respects, the information shown therein and
have been compiled on a basis consistent with that of the audited
financial statements of the Company.
(z) Ernst
& Young LLP, who have certified financial statements and
supporting schedules of the Company and its consolidated
subsidiaries, whose report is incorporated by reference in the most
recent Preliminary Prospectus and in the Registration Statement,
who have audited the Company’s internal control over
financial reporting and management’s assessment thereof and
who have delivered the initial letter referred to in Section 7(i)
hereof, are registered independent public accountants as required
by the Securities Act and the Rules and Regulations.
(aa) The
Company and each of its subsidiaries are not, and as of the
applicable Delivery Date and upon the issuance and sale of the
Stock and the application of the proceeds therefrom as described
under “Use of Proceeds” in the most recent Preliminary
Prospectus and the Prospectus, none of them will be, (i) 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 and the rules and regulations of the Commission thereunder
or (ii) a “business development company” (as
defined in Section 2(a)(48) of the Investment Company
Act).
(bb) (i) Each
“employee benefit plan” (within the meaning of
Section 3(3) of the Employee Retirement Security Act of 1974,
as amended (“ERISA”)) for which the Company or any
member of its “Controlled Group” (defined as any
organization which is a member of a controlled group of
corporations within the meaning of Section 414(b) or (c) of
the Internal Revenue Code of 1986, as amended (the
“Code”)) would have any liability (each a
“Plan”) has
8
been maintained
in compliance in all respects with its terms and with the
requirements of all applicable statutes, rules and regulations
including ERISA and the Code except where failure to do so would
not have a Material Adverse Effect; (ii) with respect to each
Plan subject to Title IV of ERISA (a) no “reportable
event” (within the meaning of Section 4043(c) of ERISA) has
occurred or is reasonably expected to occur that would result in a
Material Adverse Effect, (b) no “accumulated funding
deficiency” (within the meaning of Section 302 of ERISA
or Section 412 of the Code), whether or not waived, has
occurred or is reasonably expected to occur that would result in a
Material Adverse Effect, (c) the fair market value of the
assets under each Plan exceeds the actuarial present value of the
benefits accrued under such Plan (determined based on those
assumptions used to fund such Plan) except where failure to do so
would not have a Material Adverse Effect, and (d) neither the
Company nor any member of its Controlled Group has incurred, or
reasonably expects to incur, any liability under Title IV of ERISA
(other than contributions to the Plan or premiums to the Pension
Benefit Guaranty Corporation in the ordinary course and without
default) in respect of a Plan (including a “multiemployer
plan”, within the meaning of Section 4001(c)(3) of ERISA)
that would result in a Material Adverse Effect; and (iii) each
Plan that is intended to be qualified under Section 401(a) of the
Code has received a favorable determination letter from the
Internal Revenue Service as to its qualified status and nothing has
occurred, whether by action or by failure to act, which would cause
the loss of such qualification that would result in a Material
Adverse Effect.
(cc) The
Company is in compliance, in all material respects, with the
provisions of the Sarbanes-Oxley Act of 2002 to the extent
currently applicable.
(dd) The
Company and each of its subsidiaries have filed all federal, state
and local income and franchise tax returns required to be filed
through the date hereof and have paid all taxes due thereon, except
such as are being contested in good faith by appropriate
proceedings or where the failure to do so would not have a Material
Adverse Effect, and no tax deficiency has been determined adversely
to the Company or any of its subsidiaries which has had, and the
Company does not have any knowledge of any tax deficiency which
would have, a Material Adverse Effect.
(ee) The
Company and its subsidiaries carry, or are covered by, insurance in
such amounts and covering such risks as is adequate for the conduct
of their respective businesses and the value of their respective
properties, except where the failure to do so would not reasonably
be expected to have a Material Adverse Effect.
(ff) Except
as would not result in a Material Adverse Effect, (A) neither
the Company nor any of its subsidiaries is in violation of any
federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, permit, policy or rule of common law or any
judicial or administrative interpretation thereof, including any
judicial or administrative order, consent, decree or judgment,
relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, “ Hazardous
Materials ”) or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials (collectively, “
Environmental Laws ”), (B) the Company
and
9
its
subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in
compliance with their requirements, (C) there are no pending
or, to the knowledge of the Company, threatened administrative,
regulatory or judicial actions, suits, demands, demand letters,
claims, liens, notices of noncompliance or violation, investigation
or proceedings relating to any Environmental Law against the
Company or any of its subsidiaries and (D) there are no events
or circumstances that might reasonably be expected to form the
basis of an order for clean-up or remediation, or an action, suit
or proceeding by any private party or governmental body or agency,
against or affecting the Company or any of its subsidiaries
relating to Hazardous Materials or any Environmental Laws, except
as disclosed in the Preliminary Prospectus.
(gg) The
Company maintains a system of internal control over financial
reporting (as such term is defined in Rule 13a-15(f) of the
Exchange Act) that complies with the requirements of the Exchange
Act and has been designed by the Company’s principal
executive officer and principal financial officer, or under their
supervision, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with GAAP. The
Company’s internal control over financial reporting is
effective and the Company is not aware of any material weaknesses
in its internal control over financial reporting. Since the date of
the latest audited financial statements included or incorporated by
reference in the most recent Preliminary Prospectus, there has been
no change in the Company’s internal control over financial
reporting that has materially affected, or is reasonably likely to
materially affect, the Company’s internal control over
financial reporting. The Company maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) of the
Exchange Act) that comply with the requirements of the Exchange Act
and such disclosure controls and procedures have been designed to
provide reasonable assurance that material information relating to
the Company and its subsidiaries that is required to be disclosed
in the reports the Company files, furnishes, submits or otherwise
provides to the Commission under the Exchange Act is made known to
the Company’s principal executive officer and principal
financial officer by others within those entities in such a manner
as to allow timely decisions regarding the required disclosure;
such disclosure controls and procedures are effective.
(hh) The
Company has not distributed and, prior to the later to occur of any
Delivery Date and completion of the distribution of the Stock, will
not distribute any offering material in connection with the
offering and sale of the Stock other than any Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus to
which the Representatives have consented in accordance with Section
1(i) or 5(a)(vii).
(ii) The
Stock has been approved for listing, subject to official notice of
issuance, on the New York Stock Exchange.
Any
certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection
with the offering of the Stock shall be deemed a representation and
warranty by the Company, as to matters covered thereby on the date
of such certificate, to each Underwriter.
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2.
Purchase of the Stock by the Underwriters. On the basis of
the representations and warranties contained in, and subject to the
terms and conditions of, this Agreement, the Company agrees to sell
5,500,000 shares of the Firm Stock to the several Underwriters, and
each of the Underwriters, severally and not jointly, agrees to
purchase the number of shares of the Firm Stock set forth opposite
that Underwriter’s name in Schedule I hereto. The
respective purchase obligations of the Underwriters with respect to
the Firm Stock shall be rounded among the Underwriters to avoid
fractional shares, as the Representatives may determine.
In
addition, on the basis of the representations and warranties
contained in, and subject to the terms and conditions of, this
Agreement, the Company grants to the Underwriters an option to
purchase part or all of the Option Stock. Such option is
exercisable in the event that the Underwriters sell more shares of
Common Stock than the number of shares of Firm Stock in the
offering and as set forth in Section 4 hereof. Each
Underwriter agrees, severally and not jointly, to purchase the
number of shares of Option Stock (subject to such adjustments to
eliminate fractional shares as the Representatives may determine)
that bears the same proportion to the total number of shares of
Option Stock to be sold on such Delivery Date as the number of
shares of Firm Stock set forth in Schedule I hereto
opposite the name of such Underwriter bears to the total number of
shares of Firm Stock.
The
price of both the Firm Stock and any Option Stock purchased by the
Underwriters shall be $30.3975 per share.
The
Company shall not be obligated to deliver any of the Firm Stock or
Option Stock to be delivered on the applicable Delivery Date,
except upon payment for all such Stock to be purchased on such
Delivery Date as provided herein.
3.
Offering of Stock by the Underwriters . Upon
authorization by the Representatives of the release of the Firm
Stock, the several Underwriters propose to offer the Firm Stock for
sale upon the terms and conditions to be set forth in the
Prospectus.
4.
Delivery of and Payment for the Stock . Delivery of
the Firm Stock by the Company and payment for the Firm Stock by the
several Underwriters shall be made at 10:00 A.M., New York
City time, on the fourth full business day following the date of
this Agreement or at such other date or place as shall be
determined by agreement between the Representatives and the
Company. This date and time are sometimes referred to as the
“ Initial Delivery Date .” Delivery of the Firm
Stock shall be made to the Representatives for the account of each
Underwriter against payment by the several Underwriters through the
Representatives of the respective aggregate purchase prices of the
Firm Stock being sold by the Company to or upon the order of the
Company by wire transfer in immediately available funds to the
accounts specified by the Company. Time shall be of the essence,
and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each
Underwriter hereunder. The Company shall deliver the Firm Stock
through the facilities of DTC unless the Representatives shall
otherwise instruct.
The
option granted in Section 2 will expire 30 days after the
date of this Agreement and may be exercised in whole or from time
to time in part by written notice being
11
given to the
Company by the Representatives; provided that if such
expiration date falls on a day that is not a business day, the
option granted in Section 2 will expire on the next succeeding
business day. Such notice shall set forth the aggregate number of
shares of Option Stock as to which the option is being exercised,
the names in which the shares of Option Stock are to be registered,
the denominations in which the shares of Option Stock are to be
issued and the date and time, as determined by the Representatives,
when the shares of Option Stock are to be delivered; provided,
however , that this date and time shall not be earlier than the
Initial Delivery Date nor earlier than the second business day
after the date on which the option shall have been exercised nor
later than the fifth business day after the date on which the
option shall have been exercised. Each date and time the shares of
Option Stock are delivered is sometimes referred to as an “
Option Stock Delivery Date ,” and the Initial Delivery
Date and any Option Stock Delivery Date are sometimes each referred
to as a “ Delivery Date .”
Delivery
of the Option Stock by the Company and payment for the Option Stock
by the several Underwriters through the Representatives shall be
made at 10:00 A.M., New York City time, on the date specified
in the corresponding notice described in the preceding paragraph or
at such other date or place as shall be determined by agreement
between the Representatives and the Company. On the Option Stock
Delivery Date, the Company shall deliver or cause to be delivered
the Option Stock to the Representatives for the account of each
Underwriter against payment by the several Underwriters through the
Representatives of the respective aggregate purchase prices of the
Option Stock being sold by the Company to or upon the order of the
Company by wire transfer in immediately available funds to the
accounts specified by the Company. Time shall be of the essence,
and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each
Underwriter hereunder. The Company shall deliver the Option Stock
through the facilities of DTC unless the Representatives shall
otherwise instruct.
5.
Further Agreements of the Company and the Underwriters .
(a) The Company agrees:
(i) To prepare the
Prospectus in a form reasonably approved by the Representatives and
to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission’s close of
business on the second business day following the execution and
delivery of this Agreement; to make no further amendment or any
supplement to the Registration Statement or the Prospectus prior to
the last Delivery Date except as provided herein; to advise the
Representatives, promptly after it receives notice thereof, of the
time when any amendment or supplement to the Registration Statement
or the Prospectus has been filed and to furnish the Representatives
with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by
the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
the Prospectus and for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Stock; to
advise the Representatives, 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 the Prospectus or any
Issuer Free Writing Prospectus, of the suspension of the
qualification of the Stock for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding or
examination for any such purpose, of any
12
notice from the
Commission objecting to the use of the form of the Registration
Statement or any post-effective amendment thereto or of any request
by the Commission for the amending or supplementing of the
Registration Statement, the Prospectus or any Issuer Free Writing
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 the Prospectus or any Issuer Free Writing Prospectus or
suspending any such qualification, to use promptly its best efforts
to obtain its withdrawal;
(ii) To pay the
applicable Commission filing fees relating to the Stock within the
time required by Rule 456(b)(1);
(iii) To furnish
promptly to counsel for the Underwriters a signed copy of the
Registration Statement as originally filed with the Commission, and
each amendment thereto filed with the Commission, including all
consents and exhibits filed therewith;
(iv) To deliver
promptly to the Representatives such number of the following
documents as the Representatives shall reasonably request:
(A) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto (in
each case excluding exhibits other than this Agreement and the
computation of per share earnings), (B) each Preliminary
Prospectus, the Prospectus and any amendment or supplement thereto,
(C) any Issuer Free Writing Prospectus and (D) any
document incorporated by reference in any Preliminary Prospectus or
the Prospectus; and, if the delivery of a prospectus is required at
any time after the date hereof in connection with the offering or
sale of the Stock or any other securities relating thereto and if
at such time any events 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 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 Securities
Act or the Exchange 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 or supplemented Prospectus that
will correct such statement or omission or effect such
compliance;
(v) To file
promptly with the Commission any amendment or supplement to the
Registration Statement or the Prospectus that may, in the judgment
of the Company or the Representatives, be required by the
Securities Act or requested by the Commission;
(vi) Prior to
filing with the Commission any amendment or supplement to the
Registration Statement or the Prospectus, any document incorporated
by reference in the Prospectus or any amendment to any document
incorporated by reference in the Prospectus, to furnish a copy
thereof to the Representatives and counsel for the Underwriters and
obtain the consent (not to be unreasonably withheld) of the
Representatives to the filing;
13
(vii) Not to make
any offer relating to the Stock that would constitute an Issuer
Free Writing Prospectus without the prior written consent of the
Representatives.
(viii) To retain
in accordance with the Rules and Regulations all Issuer Free
Writing Prospectuses not required to be filed pursuant to the Rules
and Regulations and to comply with any filing requirements
applicable to all Issuer Free Writing Prospectuses pursuant to the
Securities Act and the Rules and Regulations; and if at any time
after the date hereof any events shall have occurred as a result of
which any Issuer Free Writing Prospectus, as then amended or
supplemented, would conflict with the information in the
Registration Statement, the most recent Prelimin
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