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Exhibit 1.2
Execution
Version
15,000,000
Shares
XTO ENERGY
INC.
UNDERWRITING
AGREEMENT
June 5, 2007
L EHMAN B
ROTHERS I NC .
G OLDMAN S
ACHS & C O .
M ORGAN S
TANLEY & C O . I
NCORPORATED
as Representatives of the
Underwriters
set forth on Schedule 1
hereto
c/o Lehman Brothers
Inc.
745 Seventh Avenue
New York, New York
10019
Ladies and Gentlemen:
XTO Energy Inc., a Delaware
corporation (the “ Company ”), proposes to issue
and sell 15,000,000 shares (the “ Firm Stock ”)
of the Company’s Common Stock, par value $0.01 per share (the
“ Common Stock ”). In addition, the Company
proposes to grant to the Underwriters named in Schedule 1 hereto
(the “ Underwriters ”), an option to purchase up
to an additional 2,250,000 shares of the Common Stock on the terms
and for the purposes set forth in Section 2 (the “
Option Stock ”). The Firm Stock and the Option Stock,
if purchased, are hereinafter collectively called the “
Stock .” This agreement (this “ Agreement
”) is to confirm the agreement concerning the purchase of the
Stock from the Company by the Underwriters.
Section 1.
Representations, Warranties and Agreements of the Company. The
Company represents, warrants and agrees that:
(a) A registration statement
on Form S-3 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 such
registration statement and any amendment thereto 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 5:00 p.m. (New York City time) June 5,
2007;
(ii) “ Effective
Date ” means any date as of which any part of such
registration statement relating to the Stock became, or is deemed
to have become, effective under the Securities Act in accordance
with the Rules and Regulations;
(iii) “ Issuer Free
Writing Prospectus ” means each “ 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 any preliminary prospectus relating to
the Stock included in such registration statement or filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations,
including any preliminary prospectus supplement thereto relating to
the Stock;
(v) “ Pricing
Disclosure Package ” means, as of the Applicable Time,
the most recent Preliminary Prospectus, together with the
information included in Schedule 3 hereto and each Issuer Free
Writing Prospectus filed or used by the Company on or before the
Applicable Time, other than a road show that is an Issuer Free
Writing Prospectus under Rule 433 of the Rules and
Regulations;
(vi) “
Prospectus ” means the final prospectus relating to
the Stock, including any prospectus supplement thereto relating to
the Stock, as filed with the Commission pursuant to Rule 424(b) of
the Rules and Regulations; and
(vii) “ Registration
Statement ” means, collectively, the various parts of
such registration statement, each as amended as of the Effective
Date for such part, including any Preliminary Prospectus or the
Prospectus and all exhibits to such registration
statement.
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 latest
Preliminary Prospectus included in the Registration Statement or
filed 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 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
order
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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 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) The Company has been
since the time of initial filing of the Registration Statement and
continues to be a “well-known seasoned issuer” (as
defined in Rule 405) eligible to use Form S-3 for the offering
of the Stock, including not having been an “ineligible
issuer” (as defined in Rule 405) at any such time or date.
The Registration Statement is an “automatic shelf
registration statement” (as defined in Rule 405) 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 most recent 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.
(d) 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
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 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 9(e).
(e) 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. Each Issuer Free Writing
Prospectus (including, without limitation, any road show that is a
free writing prospectus under Rule 433) does not include any
information that conflicts with the information contained in the
Registration Statement, including any document incorporated by
reference therein that has not been superseded or modified, or the
Pricing Disclosure Package.
(f) Each Issuer Free Writing
Prospectus (including, without limitation, any road show that is a
free writing prospectus under Rule 433) conformed or will conform
in all material respects to the requirements of the Securities Act
and the Rules and
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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 Rules and Regulations. 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, and will retain, 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.
(g) The Registration
Statement did not, as of the Effective Date, and 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 not misleading; provided that no
representation or warranty is made as to information contained in
or omitted from the Registration Statement or 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 9(e).
(h) 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. None of such documents, 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 light of the circumstances under which
they were made, not misleading.
(i) Neither the Company nor
any of its subsidiaries has sustained, since the date of the latest
audited financial statements included in the Preliminary
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, otherwise than as set forth
or contemplated in the Preliminary Prospectus or Prospectus; and,
since the respective dates as of which information is given in the
Registration Statement and the Preliminary Prospectus, there has
not been any change in the long-term debt of the Company or any of
its subsidiaries, other than changes to indebtedness outstanding
under the Company’s Amended and Restated 5-Year Revolving
Credit Agreement dated April 1, 2005 between the Company and
certain commercial banks named therein, as amended to date, and the
Company’s commercial paper program, or any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, stockholders’ equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Preliminary Prospectus.
(j) (1) The Company has good
and defensible title to all real property, free and clear of all
liens, encumbrances and defects, except (A) royalties,
overriding royalties
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and other burdens under oil
and gas leases, (B) easements, restrictions, rights-of-way and
other matters that commonly affect property, (C) liens
securing taxes and other governmental charges, or claims of
materialmen, mechanics and similar persons, not yet due and
payable, (D) liens and encumbrances under operating
agreements, farmout agreements, unitization, pooling and
commutation agreements, declarations and orders, and gas sales
contracts, securing payment of amounts not yet due and payable and
of a scope and nature customary in the oil and gas industry and
(E) liens, encumbrances and defects that do not in the
aggregate materially affect the value of the real property or
materially interfere with the use made or proposed to be made of
such real property by the Company; and (2) the working
interests in oil, gas and mineral leases or mineral interests which
constitute a portion of the real property held by the Company
reflect in all material respects the right of the Company to
explore or receive production from such real property, and the care
taken by the Company and its subsidiaries with respect to acquiring
or otherwise procuring such leases or mineral interests was
generally consistent with standard industry practices for acquiring
or procuring leases and interests therein to explore for
hydrocarbons.
(k) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of Delaware, is duly qualified to do
business and is in good standing as a foreign corporation in each
jurisdiction in which its ownership or lease of property or the
conduct of its business requires such qualification, and has all
power and authority necessary to own or hold its properties and to
conduct the businesses in which it is engaged; and none of the
subsidiaries of the Company is a significant subsidiary, as such
term is defined in Rule 405 of the Rules and
Regulations.
(l) The Company has an
authorized capitalization as set forth in the most recent
Preliminary Prospectus and the Prospectus. All of the issued shares
of capital stock of the Company have been duly and validly
authorized and issued, were issued in compliance with federal and
state securities laws, are fully paid and non-assessable and
conform, or will conform, to the description thereof contained in
the Registration Statement, the most recent Preliminary Prospectus
and the Prospectus. All of the Company’s options, warrants
and other rights to purchase or exchange any securities for shares
of the Company’s capital stock have been duly and validly
authorized and issued, were issued in compliance with federal and
state securities laws, and conform, or will conform, to the
description thereof contained in the Registration Statement, the
most recent Preliminary Prospectus and the Prospectus. All of the
issued shares of capital stock of each subsidiary of the Company
have been duly authorized and validly issued, are fully paid and
non-assessable and are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims,
except for such liens, encumbrances, equities or claims as could
not, in the aggregate, reasonably be expected to have a material
adverse effect.
(m) The shares of the Stock
to be issued and sold by the Company to the Underwriters hereunder
have been duly authorized and, upon payment and delivery in
accordance with this Agreement, will be validly issued, fully paid
and non-assessable,
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will conform to the
description thereof contained in the most recent Preliminary
Prospectus, will be issued in compliance with federal and state
securities laws and will be free of statutory and contractual
preemptive rights, rights of first refusal and similar
rights.
(n) Neither (i) the
execution or delivery hereof by the Company, nor (ii) the
consummation of the transactions contemplated hereby, nor
(iii) the application of the proceeds from the sale of the
Stock as described under “Use of Proceeds” in the most
recent Preliminary Prospectus nor (iv) compliance by the
Company with all of the provisions of this Agreement, will
(A) conflict with or result in a breach or violation of, or
constitute a default under, the certificate of incorporation,
by-laws, partnership agreement or other governing documents of the
Company or any of its subsidiaries, or any material agreement,
indenture or other instrument to which the Company or any of its
subsidiaries is a party or by which any of them is bound, or to
which any of their properties is subject or (B) violate any
law, rule, administrative regulation or decree of any court, or any
governmental agency or body having jurisdiction over the Company,
its subsidiaries or any of their respective properties or assets,
or result in the creation or imposition of any lien, charge, claim
or encumbrance upon any property or asset of the Company or any of
its subsidiaries, which in any such event described in this
subclause (B) would have a material adverse effect on the
Company. Except for (i) the registration of the Stock under
the Securities Act, (ii) such consents, approvals,
authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws in
connection with the purchase and sale of the Stock by the
Underwriters and such permits, consents, approvals and similar
authorizations required under the securities or “Blue
Sky” laws of certain jurisdictions, and (iii) such
permits, consents, approvals and authorizations which have been
obtained, no permit, consent, approval, authorization or order of,
or filing or registration with, any court, governmental agency or
body or financial institution is required in connection with the
consummation of the transactions contemplated by this
Agreement.
(o) Neither the Company nor
any of its subsidiaries is in violation of its certificate of
incorporation or bylaws or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or any other agreement or instrument to which it
is a party or by which it or any of its properties is
bound.
(p) The Company has all
requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement. This Agreement has
been duly authorized, executed and delivered by the
Company.
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(q) 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.
(r) The financial statements
(including the related notes and supporting schedules) filed as
part of the Registration Statement or included or incorporated by
reference in the most recent Preliminary Prospectus and the
Prospectus comply as to form in all material respects with the
requirements of Regulation S-X under the Securities Act and present
fairly the financial condition, results of operations and the cash
flows of the entities purported to be shown thereby, at the dates
and for the periods indicated, and have been prepared in conformity
with generally accepted accounting principles applied on a
consistent basis throughout the periods involved.
(s) KPMG LLP (“
KPMG ”), who have certified certain financial
statements of the Company, whose reports appear in the Preliminary
Prospectus and the Prospectus or are incorporated by reference
therein and who have delivered the initial letter referred to in
Section 8(f) hereof, are independent registered public
accountants within the meaning of Rule 101 of the Code of
Professional Conduct of the American Institute of Certified Public
Accountants and its interpretations and rulings
thereunder.
(t) The Company and each of
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 as is customary for companies engaged in similar
businesses in similar industries.
(u) The Company and each of
its subsidiaries own or possess adequate rights to use all material
patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service mark registrations,
copyrights and licenses necessary for the conduct of their
respective businesses and have no reason to believe that the
conduct of their respective businesses will conflict with, and have
not received any notice of any claim of conflict with, any such
rights of others.
(v) Except as described in
the most recent Preliminary Prospectus and the Prospectus, there
are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any
property or assets of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, would have a material adverse effect on the
consolidated financial position, stockholders’ equity,
results of operations, business or prospects of the Company and its
subsidiaries; and to the best of the Company’s knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(w) No labor disturbance by
the employees of the Company or its subsidiaries exists or, to the
knowledge of the Company, is imminent, which could be reasonably
expected to have a material adverse effect on the general affairs,
management,
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consolidated financial
position, stockholders’ equity, results of operations,
business or prospects of the Company and its
subsidiaries.
(x) Since the date as of
which information is given in the most recent Preliminary
Prospectus through the date hereof, and except as may otherwise be
disclosed in the most recent Preliminary Prospectus and the
Prospectus, the Company has not (i) issued or granted any
securities other than pursuant to any of its employee benefit
plans, (ii) incurred any liability or obligation, direct or
contingent, other than liabilities and obligations which were
incurred in the ordinary course of business or (iii) entered
into any transaction not in the ordinary course of
business.
(y) The Company
(i) makes and keeps accurate books and records and
(ii) maintains internal accounting controls which provide
reasonable assurance that (A) transactions are executed in
accordance with management’s authorization,
(B) transactions are recorded as necessary to permit
preparation of its financial statements and to maintain
accountability for its assets, (C) access to its assets is
permitted only in accordance with management’s authorization
and (D) the reported accountability for its assets is compared
with existing assets at reasonable intervals.
(z) Neither the Company nor
any of its subsidiaries, nor any director, officer, agent, employee
or other person acting on behalf of the Company or any of its
subsidiaries, has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity, (ii) made any direct
or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds, (iii) violated or
is in violation of any provision of the Foreign Corrupt Practices
Act of 1977, or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment. Neither the Company
nor any of its subsidiaries conducts business or has any operations
in any foreign jurisdiction.
(aa) There has been no
storage, disposal, generation, manufacture, refinement,
transportation, handling or treatment of toxic wastes, medical
wastes, hazardous wastes or hazardous substances by the Company or
any of its subsidiaries (or, to the knowledge of the Company, any
of their predecessors in interest) at, upon or from any of the
property now or previously owned or leased by the Company or its
subsidiaries in violation of any laws, regulations, ordinances,
rules, orders, judgments, decrees, permits or other legal
requirements of any governmental authority, including without
limitation any international, national, state, provincial,
regional, or local authority, relating to the protection of human
health or safety, the environment, or natural resources, or to
hazardous or toxic substances or wastes, pollutants or contaminants
(“ Environmental Laws ”) or which would require
remedial action under any applicable Environmental Laws, except for
any violation or remedial action which would not be reasonably
likely to have, singularly or in the aggregate with all such
violations and remedial actions, a material adverse effect on the
general affairs, management, consolidated financial position,
stockholders’ equity or results of operations of the Company
and its subsidiaries; there has been no material spill, discharge,
leak, emission, injection, escape,
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dumping or release of any
kind onto such property or into the environment surrounding such
property of any toxic wastes, medical wastes, solid wastes,
hazardous wastes or hazardous substances due to or caused by the
Company or any of its subsidiaries or with respect to which the
Company or any of its subsidiaries have knowledge, except for any
such spill, discharge, leak, emission, injection, escape, dumping
or release which would not be reasonably likely to have, singularly
or in the aggregate with all such spills, discharges, leaks,
emissions, injections, escapes, dumpings and releases, a material
adverse effect on the general affairs, management, consolidated
financial position, stockholders’ equity or results of
operations of the Company and its subsidiaries; and the terms
“hazardous wastes,” “toxic wastes,”
“hazardous substances” and “medical wastes”
shall have the meanings specified in any applicable Environmental
Laws; none of the Company or any of its subsidiaries has received
notice of any actual or alleged violation of such Environmental
Laws, or of any potential liability for or other obligation
concerning the presence, disposal or release of hazardous or toxic
substances or wastes, pollutants or contaminants, which violations
or liabilities could reasonably be expected to have a material
effect on the capital expenditures, earnings or competitive
position of the Company and its subsidiaries. Except as described
in the most recent Preliminary Prospectus, (A) there are no
proceedings that are pending, or known to be contemplated, against
the Company or any of its subsidiaries under Environmental Laws in
which a governmental authority is also a party, other than such
proceedings regarding which it is reasonably believed no monetary
sanctions of $100,000 or more will be imposed, (B) the Company
and its subsidiaries are not aware of any issues regarding
compliance with Environmental Laws, or liabilities or other
obligations under Environmental Laws or concerning hazardous or
toxic substances or wastes, pollutants or contaminants, which could
reasonably be expected to have a material effect on the capital
expenditures, earnings or competitive position of the Company and
its subsidiaries, and (C) none of the Company and its
subsidiaries anticipates material capital expenditures relating to
Environmental Laws.
(bb) The Company is not, and
after giving effect to the offer 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 will not be, an investment company as defined in the
Investment Company Act of 1940, as amended (the “
Investment Company Act ”).
(cc) The information supplied
by the Company to its independent petroleum engineering consultants
for purposes of preparing the reserve reports used to calculate
estimates of reserves of the Company included in the Registration
Statement, Preliminary Prospectus and Prospectus, including,
without limitation, production, costs of operation and development,
current prices for production, agreements relating to current and
future operations and sales of production, was true and correct in
all material respects on the date supplied and was prepared in
accordance with customary industry practices; Miller and Lents,
Ltd., independent consulting petroleum engineers, who prepared
estimates of the extent and value of proved oil and natural gas
reserves, are independent with respect to the Company.
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(dd) The Company has not
taken and will not take, directly or indirectly, any action which
is designed to or which has constituted or which would reasonably
be expected to cause or result in stabilization or manipulation of
the price of any security of the Company to facilitate the sale or
resale of the shares of Stock.
(ee) There are no contracts,
agreements or understandings between the Company and any person
granting such person the right (other than rights which have been
waived or satisfied) to require the Company to file a registration
statement under the Securities Act with respect to any securities
of the Company owned or to be owned by such person or to require
the Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by
the Company under the Securities Act (other than (i) the
Registration Rights Agreement dated May 11, 1993 by and
between the Company and certain stockholders (the “ 1993
Registration Rights Agreement ”) under which all
registrable securities are eligible for trading pursuant to Rule
144 under the Securities Act, (ii) the Registration Rights
Agreement dated April 1, 2005 by and between the Company and
former stockholders of Antero Resources Corporation) and
(iii) the Registration Rights Agreement dated June 30,
2006 by and between the Company and former securityholders of Peak
Energy Resources, Inc.).
(ff) There are no contracts
or other documents which are required by the Rules and Regulations
to be described in the most recent Preliminary Prospectus and
Prospectus or filed as exhibits to the Registration Statement by
the Securities Act or by the Rules and Regulations which have not
been described in such Preliminary Prospectus and Prospectus or
filed as exhibits to the Registration Statement.
(gg) No relationship, direct
or indirect, exists between or among the Company on the one hand,
and the directors, officers, stockholders, customers or suppliers
of the Company on the other hand, which is required by the Rules
and Regulations to be described in the most recent Preliminary
Prospectus and Prospectus which is not so described.
(hh) The Company has filed
all federal, state and local income and franchise tax returns
required to be filed through the date hereof and has paid all taxes
due thereon, and no tax deficiency has been determined adversely to
the Company or any of its subsidiaries which has had (nor does the
Company have any knowledge of any asserted tax deficiency which, if
determined adversely to the Company or any of its subsidiaries,
would have) a material adverse effect on the consolidated financial
position, stockholders’ equity, results of operations,
business or prospects of the Company and its
subsidiaries.
(ii) There is and has been no
failure on the part of the Company and any of the Company’s
directors or officers, in their capacities as such, to comply with
the provisions of the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith.
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(jj) The Company has not
received any written comments from the Commission staff in
connection with the Company’s reports under the Exchange Act
that remain unresolved.
(kk) 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(f)
or 5(g).
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, to each Underwriter.
Section 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
15,000,000 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 1 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, the Company
grants to the Underwriters an option to purchase up to 2,250,000
additional shares of Option Stock. Such option is exercisable in
the event that the Underwriters sell more shares of Common Stock
than the number 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 1 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
$58.5338 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.
Section 3. Offering of
Stock by the Underwriters . Upon authorization by the
Underwriters of the release of the Stock, the several Underwriters
propose to offer the Stock for sale upon the terms and conditions
set forth in the Prospectus.
Section 4. Delivery of and
Payment for the Stock . (a) Delivery of and payment for
the Stock shall be made at the offices of Kelly, Hart &
Hallman LLP, Fort Worth, Texas at 10:00
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A.M., New York City time, on
June 11, 2007, 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 of the purchase price 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 in this Agreement is a further condition of the
obligation of each Underwriter hereunder. The Company shall deliver
the shares of Firm Stock through the facilities of the Depositary
Trust Company 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 given to the Company by the Representatives;
provided that if such 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 and of the respective aggregate purchase prices of
the Option Stock being sold by the Company to or upon the order of
the Company of the purchase price 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.
Section 5. Further
Agreements of the Company . The Company agrees:
(a) To prepare the Prospectus
in a form approved by the Representatives and to file such
Prospectus pursuant to Rule 424(b) under the Securities Act not
later than
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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 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;
(b) To pay the applicable
Commission filing fees relating to the Stock within the time
required by Rule 456(b)(1) without regard to the proviso
therein;
(c) To furnish promptly to
each of the Representatives and 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;
(d) 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 amended or supplemented Prospectus, (C) each 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
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