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EXHIBIT 1
(TO FORM 8-K)
SYBRON DENTAL SPECIALTIES, INC.
COMMON STOCK
TERMS AGREEMENT
June 5, 2001
To: Credit Suisse First Boston Corporation
Dear Sirs:
The undersigned (the "COMPANY") agrees to sell to you (the
"UNDERWRITER"), on and subject to the terms and conditions of the Underwriting
Agreement attached as Exhibit 1 hereto ("UNDERWRITING AGREEMENT"), the following
securities ("OFFERED SECURITIES") on the following terms:
TITLE: Common Stock, par value $.01 per share (including the
associated preferred stock purchase rights)
NUMBER OF SHARES: 2,650,000
PURCHASE PRICE: $19.00 per share
CLOSING: 9:00 A.M. on June 8, 2001 (the "CLOSING DATE"), at
the offices of Xxxxxxx & Xxxxx, 000 Xxxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000, in Federal (same day) funds.
BLACKOUT: Until 90 days after the Closing Date.
NAME AND ADDRESS OF THE UNDERWRITER:
Credit Suisse First Boston Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
The provisions of the Underwriting Agreement are incorporated
herein by reference.
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If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company and the
Underwriter in accordance with its terms.
Very truly yours,
SYBRON DENTAL SPECIALTIES, INC.
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
---------------------------------------------
Name: Xxxxx X. Xxxxxxxx, Xx.
Title: President and Chief Executive Officer
The foregoing Terms Agreement is
hereby confirmed and accepted as of the date
first above written
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ L. Price Xxxxxxxxx
--------------------------------------------
Name: L. Price Xxxxxxxxx
Title: Managing Director
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EXHIBIT 1
(TO EXHIBIT 1
TO FORM 8-K)
SYBRON DENTAL SPECIALTIES, INC.
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
UNDERWRITING AGREEMENT
1. Introductory. Sybron Dental Specialties, Inc., a Delaware
corporation ("COMPANY"), proposes to issue and sell from time to time certain of
its unsecured debt securities, preferred stock and its Common Stock, par value
$.01 per share (including the associated preferred stock purchase rights, the
"COMMON STOCK") registered under the registration statement referred to in
Section 2(a) ("REGISTERED SECURITIES"). The Registered Securities constituting
debt securities will be issued under an indenture, the form of which is filed as
an exhibit to the registration statement referred to in Section 2(a)
("INDENTURE"), between the Company and the trustee to be named therein, in one
or more series, which series may vary as to interest rates, maturities,
redemption provisions, selling prices and other terms. The Registered Securities
constituting preferred stock may be issued in one or more series, which series
may vary as to dividend rates, redemption provisions, selling prices and other
terms. Particular series or offerings of Registered Securities will be sold
pursuant to a Terms Agreement referred to in Section 3, for resale in accordance
with terms of offering determined at the time of sale.
The Registered Securities involved in any such offering are hereinafter
referred to as the "OFFERED SECURITIES". The firm or firms which agree to
purchase the Offered Securities are hereinafter referred to as the
"UNDERWRITERS" of such securities, and the representative or representatives of
the Underwriters, if any, specified in a Terms Agreement referred to in Section
3 are hereinafter referred to as the "REPRESENTATIVES"; provided, however, that
if the Terms Agreement does not specify any representative of the Underwriters,
the term "Representatives", as used in this Agreement (other than in Sections
2(b), 5(c) and 6 and the second sentence of Section 3), shall mean the
Underwriters.
2. Representations and Warranties of the Company. The Company, as of
the date of each Terms Agreement referred to in Section 3, represents and
warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333-59228), including a
prospectus, relating to the Registered Securities has been filed with
the Securities and Exchange Commission ("COMMISSION") and has become
effective. Such registration statement, as amended at the time of any
Terms Agreement referred to in Section 3, is hereinafter referred to as
the "REGISTRATION STATEMENT", and the prospectus included in such
Registration Statement, as supplemented as contemplated by Section 3 to
reflect the terms of the Offered Securities (if they are debt
securities or preferred stock) and the terms of the offering of the
Offered Securities, as first filed with the Commission pursuant to and
in accordance with Rule 424(b) ("RULE 424(B)") under the Securities Act
of 1933 ("ACT"), including all material incorporated by reference
therein, is hereinafter referred to as the "PROSPECTUS". No document
has been or will be prepared or distributed in reliance on Rule 434
under the Act.
(b) On the effective date of the registration statement
relating to the Registered Securities, such registration statement
conformed in all respects to the requirements of the Act, the Trust
Indenture Act of 1939 ("TRUST INDENTURE ACT") and the rules and
regulations of the Commission thereunder ("RULES AND REGULATIONS") and
did not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and on the date of each
Terms Agreement referred to in Section 3, the Registration Statement
and the Prospectus will conform in all respects to the requirements of
the Act, the Trust Indenture Act and the Rules and Regulations, and
neither of such documents will include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
except that the foregoing does not apply to statements in or omissions
from any of such documents based upon written
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information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where failure to be so qualified would not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries, taken as a whole (a
"MATERIAL ADVERSE EFFECT").
(d) Each significant subsidiary (as such term is defined in
Rule 1-02(w) of Regulation S-X under the Act) of the Company
("SIGNIFICANT SUBSIDIARY") has been duly incorporated and is an
existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus; and each Significant Subsidiary of the Company is
duly qualified to do business as a foreign corporation in good standing
in all other jurisdictions in which its ownership or lease of property
or the conduct of its business requires such qualification, except
where the failure to be so qualified would not, individually or in the
aggregate, have a Material Adverse Effect; all of the issued and
outstanding capital stock of each subsidiary of the Company has been
duly authorized and validly issued and is fully paid and nonassessable;
and, except as disclosed in the Prospectus, the capital stock of each
subsidiary owned by the Company, directly or through subsidiaries, is
owned free from liens, encumbrances and defects.
(e) If the Offered Securities are debt securities: The
Indenture has been duly authorized and has been duly qualified under
the Trust Indenture Act; the Offered Securities have been duly
authorized; and when the Offered Securities are delivered and paid for
pursuant to the Terms Agreement on the Closing Date (as defined below)
or pursuant to Delayed Delivery Contracts (as hereinafter defined), the
Indenture will have been duly executed and delivered, such Offered
Securities will have been duly executed, authenticated, issued and
delivered and will conform in all material respects to the description
thereof contained in the Prospectus and the Indenture and such Offered
Securities will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(f) If the Offered Securities are preferred stock: The Offered
Securities have been duly authorized and, when the Offered Securities
have been delivered and paid for in accordance with the Terms Agreement
on the Closing Date, such Offered Securities will have been validly
issued, fully paid and nonassessable and will conform in all material
respects to the description thereof contained in the Prospectus; and
the stockholders of the Company have no preemptive rights with respect
to the Offered Securities.
(g) If the Offered Securities are Common Stock: The Offered
Securities and all other outstanding shares of capital stock of the
Company have been duly authorized; all outstanding shares of capital
stock of the Company are, and, when the Offered Securities have been
delivered and paid for in accordance with the Terms Agreement on the
Closing Date, such Offered Securities will have been, validly issued,
fully paid and nonassessable and will conform in all material respects
to the description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with respect to
its Common Stock.
(h) If the Offered Securities are convertible: when the
Offered Securities are delivered and paid for pursuant to the Terms
Agreement on the Closing Date, such Offered Securities will be
convertible into Common Stock of the Company in accordance with their
terms (if the Offered Securities are preferred stock) or the Indenture
(if the Offered Securities are debt securities); the shares of Common
Stock initially issuable upon conversion of such Offered Securities
have been duly authorized and reserved for issuance upon such
conversion and, when issued upon such conversion, will be validly
issued, fully paid and
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nonassessable; the outstanding shares of Common Stock have been duly
authorized and validly issued, are fully paid and nonassessable and
conform in all material respects to the description thereof contained
in the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Common Stock.
(i) If the Offered Securities are Common Stock or are
convertible into Common Stock: Except as disclosed in the Prospectus,
there are no contracts, agreements or understandings between the
Company and any person that would give rise to a valid claim against
the Company or any Underwriter for a brokerage commission, finder's fee
or other like payment in connection with the offering of the Offered
Securities.
(j) If the Offered Securities are Common Stock or are
convertible into Common Stock: Except as disclosed in the Prospectus,
there are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the 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 Act.
(k) If the Offered Securities constitute Common Stock or are
convertible into Common Stock, the outstanding shares of Common Stock
are listed on The New York Stock Exchange (the "STOCK EXCHANGE") and
the Offered Securities (if they are Common Stock) or the Common Stock
into which the Offered Securities are convertible (if they are
convertible) have been approved for listing on the Stock Exchange,
subject to notice of issuance. If the Offered Securities are debt
securities or preferred stock, they have been approved for listing on
any stock exchange indicated in the Terms Agreement, subject to notice
of issuance.
(l) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
for the consummation of the transactions contemplated by the Terms
Agreement (including the provisions of this Agreement) in connection
with the issuance and sale of the Offered Securities by the Company,
except such as have been obtained and made or as may be required in the
future under the Act and, if the Offered Securities are debt
securities, the Trust Indenture Act, and, in either case, such as may
be required under state securities laws.
(m) The execution, delivery and performance of the Indenture
(if the Offered Securities are debt securities), the Terms Agreement
(including the provisions of this Agreement) and any Delayed Delivery
Contracts and the issuance and sale of the Offered Securities and, if
the Offered Securities are debt securities or preferred stock,
compliance with the terms and provisions thereof, will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, (i) any statute, any rule, regulation or
order of any governmental agency or body or any court, domestic or
foreign, having jurisdiction over the Company or any subsidiary of the
Company or any of their properties, or any agreement or instrument to
which the Company or any such subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject, except
where such breaches, violations or defaults would not, individually or
in the aggregate, have a Material Adverse Effect, or (ii) the charter
or by-laws of the Company or any Significant Subsidiary; and the
Company has full power and authority to authorize, issue and sell the
Offered Securities as contemplated by the Terms Agreement (including
the provisions of this Agreement).
(n) The Terms Agreement (including the provisions of this
Agreement) and, if the Offered Securities are debt securities or
preferred stock, any Delayed Delivery Contracts, have been duly
authorized, executed and delivered by the Company.
(o) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and
all other properties and assets owned by them, in each case free from
liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made thereof
by them, except where the failure to be free from such liens,
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encumbrances and defects would not have a Material Adverse Effect; and
except as disclosed in the Prospectus, the Company and its subsidiaries
hold any leased real or personal property under valid and enforceable
leases with no exceptions that would materially interfere with the use
made or to be made thereof by them, except in each case, where the
failure to so hold the properties would not have a Material Adverse
Effect.
(p) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them, except where the failure to have any such certificates,
authorities or permits would not have a Material Adverse Effect, and
have not received any notice of proceedings relating to the revocation
or modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(q) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
would have a Material Adverse Effect.
(r) Except as disclosed in the Prospectus, the Company and its
subsidiaries own, possess or can acquire on reasonable terms, adequate
trademarks, trade names and other rights to inventions, know-how,
patents, copyrights, confidential information and other intellectual
property (collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary to
conduct the business now operated by them, or presently employed by
them, except where the failure to own, possess or otherwise be able to
acquire such intellectual property rights would not, individually or in
the aggregate, have a Material Adverse Effect; and to the best of the
Company's knowledge, neither the Company nor any of its subsidiaries
has received any notice of infringement of or conflict with asserted
rights of others with respect to any intellectual property rights that,
if determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a Material Adverse Effect.
(s) Except as disclosed in the Prospectus, neither the Company
nor any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, "ENVIRONMENTAL LAWS"), owns or operates any
real property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the
aggregate have a Material Adverse Effect; and the Company is not aware
of any pending investigation which might lead to such a claim.
(t) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against, or to the Company's
knowledge, there are no pending actions, suits or proceedings that may
reasonably be expected to affect, the Company, any of its subsidiaries
or any of their respective properties that, if determined adversely to
the Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect, or would materially and
adversely affect the ability of the Company to perform its obligations
under the Indenture (if the Offered Securities are debt securities),
the Terms Agreement (including the provisions of this Agreement) or any
Delayed Delivery Contracts, or which are otherwise material in the
context of the sale of the Offered Securities; and to the Company's
knowledge, no such actions, suits or proceedings are threatened.
(u) The financial statements included in the Registration
Statement and Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown, and,
except as otherwise disclosed in the Prospectus, such financial
statements have been prepared in conformity with the generally accepted
accounting principles in the United States applied on a consistent
basis; any schedules included in the Registration Statement present
fairly the information required to be stated therein; and if pro forma
financial statements are included in the Registration Statement and
Prospectus: the assumptions used in preparing the pro forma financial
statements included in the Registration Statement and the Prospectus
provide a reasonable basis for presenting the significant effects
directly attributable to the transactions or
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events described therein, the related pro forma adjustments give
appropriate effect to those assumptions, and the pro forma columns
therein reflect the proper application of those adjustments to the
corresponding historical financial statement amounts.
(v) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the Prospectus, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(w) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940.
3. Purchase and Offering of Offered Securities. The obligation of the
Underwriters to purchase the Offered Securities will be evidenced by an
agreement or exchange of other written communications ("TERMS AGREEMENT") at the
time the Company determines to sell the Offered Securities. The Terms Agreement
will incorporate by reference the provisions of this Agreement, except as
otherwise provided therein, and will specify the firm or firms which will be
Underwriters, the names of any Representatives, the principal amount or number
of shares to be purchased by each Underwriter, the purchase price to be paid by
the Underwriters and (if the Offered Securities are debt securities or preferred
stock) the terms of the Offered Securities not already specified (in the
Indenture, in the case of Offered Securities that are debt securities),
including, but not limited to, interest rate (if debt securities), dividend rate
(if preferred stock), maturity (if debt securities), any redemption provisions
and any sinking fund requirements and whether any of the Offered Securities may
be sold to institutional investors pursuant to Delayed Delivery Contracts (as
defined below). The Terms Agreement will also specify the time and date of
delivery and payment (such time and date, or such other time not later than
seven full business days thereafter as the Underwriter first named in the Terms
Agreement (the "LEAD UNDERWRITER") and the Company agree as the time for payment
and delivery, being herein and in the Terms Agreement referred to as the
"CLOSING DATE"), the place of delivery and payment and any details of the terms
of offering that should be reflected in the prospectus supplement relating to
the offering of the Offered Securities. For purposes of Rule 15c6-1 under the
Securities Exchange Act of 1934, the Closing Date (if later than the otherwise
applicable settlement date) shall be the date for payment of funds and delivery
of securities for all the Offered Securities sold pursuant to the offering,
other than Contract Securities for which payment of funds and delivery of
securities shall be as hereinafter provided. The obligations of the Underwriters
to purchase the Offered Securities will be several and not joint. It is
understood that the Underwriters propose to offer the Offered Securities for
sale as set forth in the Prospectus.
If the Terms Agreement provides for sales of Offered Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Offered Securities pursuant to delayed delivery
contracts substantially in the form of Annex I attached hereto ("DELAYED
DELIVERY CONTRACTS") with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. On the Closing
Date the Company will pay, as compensation, to the Representatives for the
accounts of the Underwriters, the fee set forth in such Terms Agreement in
respect of the principal amount or number of shares of Offered Securities to be
sold pursuant to Delayed Delivery Contracts ("CONTRACT SECURITIES"). The
Underwriters will not have any responsibility in respect of the validity or the
performance of Delayed Delivery Contracts. If the Company executes and delivers
Delayed Delivery Contracts, the Contract Securities will be deducted from the
Offered Securities to be purchased by the several Underwriters and the aggregate
principal amount or number of shares of Offered Securities to be purchased by
each Underwriter will be reduced pro rata in proportion to the principal amount
or number of shares of Offered Securities set forth opposite each Underwriter's
name in such Terms Agreement, except to the extent that the Lead Underwriter
determines that such reduction shall be otherwise than pro rata and so advise
the Company. The Company will advise the Lead Underwriter not later than the
business day prior to the Closing Date of the principal amount or number of
shares of Contract Securities.
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If the Offered Securities are debt securities and the Terms Agreement
specifies "Book-Entry Only" settlement or otherwise states that the provisions
of this paragraph shall apply, the Company will deliver against payment of the
purchase price the Offered Securities in the form of one or more permanent
global securities in definitive form (the "GLOBAL SECURITIES") deposited with
the Trustee as custodian for The Depository Trust Company ("DTC") and registered
in the name of Cede & Co., as nominee for DTC. Interests in any permanent global
securities will be held only in book-entry form through DTC, except in the
limited circumstances described in the Prospectus. Payment for the Offered
Securities shall be made by the Underwriters in Federal (same day) funds by
official check or checks or wire transfer to an account previously designated by
the Company at a bank acceptable to the Lead Underwriter, in each case drawn to
the order of the Company at the place of payment specified in the Terms
Agreement on the Closing Date, against delivery to the Trustee as custodian for
DTC of the Global Securities representing all of the Offered Securities.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to counsel for the Underwriters, one
signed copy of the registration statement relating to the Registered Securities,
including all exhibits, in the form it became effective and of all amendments
thereto and that, in connection with each offering of Offered Securities:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(2) (or, if applicable
and if consented to by the Lead Underwriter, subparagraph (5)) not
later than the second business day following the execution and delivery
of the Terms Agreement.
(b) The Company will advise the Lead Underwriter promptly of
any proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Lead Underwriter a reasonable
opportunity to comment on any such proposed amendment or supplement;
and the Company will also advise the Lead Underwriter promptly of the
filing of any such amendment or supplement and of the institution by
the Commission of any stop order proceedings in respect of the
Registration Statement or of any part thereof and will use its best
efforts to prevent the issuance of any such stop order and to obtain as
soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs 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 to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company promptly will notify the Lead Underwriter of such event and
will promptly prepare and file with the Commission, at its own expense,
an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Neither the
Lead Underwriter's consent to, nor the Underwriters' delivery of, any
such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 5 hereof.
(d) As soon as practicable, but not later than 16 months,
after the date of each Terms Agreement, the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the later of (i) the
effective date of the registration statement relating to the Registered
Securities, (ii) the effective date of the most recent post-effective
amendment to the Registration Statement to become effective prior to
the date of such Terms Agreement and (iii) the date of the Company's
most recent Annual Report on Form 10-K filed with the Commission prior
to the date of such Terms Agreement, which will satisfy the provisions
of Section 11(a) of the Act and the Rules and Regulations (including
Rule 158).
(e) The Company will furnish to the Representatives copies of
the Registration Statement, including all exhibits, any related
preliminary prospectus, any related preliminary prospectus supplement,
the Prospectus and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as the Lead
Underwriter reasonably requests. The Company will pay the expenses of
printing and distributing to the Underwriters all such documents.
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(f) The Company will arrange for the qualification of the
Offered Securities for sale and (if the Offered Securities are debt
securities or preferred stock) the determination of their eligibility
for investment under the laws of such U.S. jurisdictions as the Lead
Underwriter designates and will continue such qualifications in effect
so long as required for the distribution, provided, however, that the
Company will not be required in connection therewith to qualify as a
foreign corporation in any jurisdiction in which it is not now so
qualified or to take any action that would subject it to general
consent to service of process or taxation in any jurisdiction in which
it is not now so subject.
(g) During the period of five years after the date of any
Terms Agreement, the Company will furnish to the Representatives and,
upon request, to each of the other Underwriters, if any, as soon as
practicable after the end of each fiscal year, a copy of its annual
report to stockholders for such year; and the Company will furnish to
the Representatives (i) as soon as available, a copy of each report and
any definitive proxy statement of the Company filed with the Commission
under the Securities Exchange Act of 1934 or mailed to stockholders,
and (ii) from time to time, such other information concerning the
Company as the Lead Underwriter may reasonably request.
(h) The Company will pay all expenses incident to the
performance of its obligations under the Terms Agreement (including the
provisions of this Agreement), for any filing fees or other expenses
(including fees and disbursements of counsel) in connection with
qualification of the Registered Securities for sale and (if the Offered
Securities are debt securities or preferred stock) any determination of
their eligibility for investment under the laws of such U.S.
jurisdictions as the Lead Underwriter may designate and the printing of
memoranda relating thereto, for any fees charged by investment rating
agencies for the rating of the Offered Securities (if they are debt
securities or preferred stock), for any applicable filing fee incident
to the review by the National Association of Securities Dealers, Inc.
of the Registered Securities, for any travel expenses of the Company's
officers and employees and any other expenses of the Company in
connection with attending or hosting meetings with prospective
purchasers of Registered Securities and for expenses incurred in
distributing the Prospectus, any preliminary prospectuses, any
preliminary prospectus supplements or any other amendments or
supplements to the Prospectus to the Underwriters.
(i) If the Offered Securities are debt securities or preferred
stock, the Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act relating to United
States dollar-denominated debt securities issued or guaranteed by the
Company and having a maturity of more than one year from the date of
issue (if the Offered Securities are debt securities) or any series of
preferred stock issued or guaranteed by the Company (if the Offered
Securities are preferred stock), or publicly disclose the intention to
make any such offer, sale, pledge, disposition or filing, without the
prior written consent of the Lead Underwriter for a period beginning at
the time of execution of the Terms Agreement and ending the number of
days after the Closing Date specified under "Blackout" in the Terms
Agreement.
(j) If the Offered Securities are Common Stock or are
convertible into Common Stock, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under
the Act relating to, any additional shares of its Common Stock or
securities convertible into or exchangeable or exercisable for any
shares of its Common Stock, or publicly disclose the intention to make
any such offer, sale, pledge, disposition or filing, without the prior
written consent of the Lead Underwriter for a period beginning at the
time of execution of the Terms Agreement and ending the number of days
after the Closing Date specified under "Blackout" in the Terms
Agreement, except issuances of Common Stock pursuant to the conversion
or exchange of convertible or exchangeable securities or the exercise
of warrants or options, in each case outstanding on the date of the
Terms Agreement, grants of director or employee stock options pursuant
to the terms of a plan in effect on the date of the Terms Agreement,
issuances of Common Stock pursuant to the exercise of such options or
the exercise of any other employee stock options outstanding on the
date of the Terms Agreement.
5. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Offered Securities will
be subject to the accuracy of the representations and warranties on the part of
the Company herein, to the accuracy of the statements of Company officers made
pursuant to the
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provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions precedent:
(a) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of
delivery thereof, of KPMG LLP confirming that they are independent
public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating to the effect
that:
(i) in their opinion the financial statements and any
schedules and any summary of earnings examined by them and
included in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on any unaudited financial statements included in
the Registration Statement;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company, inquiries of officials of
the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements, if
any, and any summary of earnings included in the
Prospectus do not comply as to form in all material
respects with the applicable accounting requirements
of the Act and the related published Rules and
Regulations or any material modifications should be
made to such unaudited financial statements and
summary of earnings for them to be in conformity with
generally accepted accounting principles;
(B) if any unaudited "capsule" information
is contained in the Prospectus, the unaudited
consolidated net sales, net operating income, net
income and net income per share amounts or other
amounts constituting such "capsule" information and
described in such letter do not agree with the
corresponding amounts set forth in the unaudited
consolidated financial statements or were not
determined on a basis substantially consistent with
that of the corresponding amounts in the audited
statements of income;
(C) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of the such letter,
there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt
of the Company and its consolidated subsidiaries or,
at the date of the latest available balance sheet
read by such accountants, there was any decrease in
consolidated net current assets or net assets, as
compared with amounts shown on the latest balance
sheet included in the Prospectus; or
(D) for the period from the closing date of
the latest income statement included in the
Prospectus to the closing date of the latest
available income statement read by such accountants
there were any decreases, as compared with the
corresponding period of the previous year and with
the period of corresponding length ended the date of
the latest income statement included in the
Prospectus, in consolidated net sales, net operating
income in the total or (if the Offered Securities are
Common Stock or are convertible into Common Stock)
per share amounts of consolidated income before
extraordinary items or net income or (if the Offered
Securities are debt securities) in the ratio of
earnings to fixed charges or (if the Offered
Securities are preferred stock) in the ratio of
earnings to fixed charges and preferred stock
dividends combined;
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except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Prospectus (in each
case to the extent that such dollar amounts, percentages and
other financial information are derived from the general
accounting records of the Company and its subsidiaries subject
to the internal controls of the Company's accounting system or
are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a
reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in
such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included
in the Prospectus for purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission
in accordance with the Rules and Regulations and Section 4(a) of this
Agreement. No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Company or any Underwriter, shall be contemplated
by the Commission.
(c) Subsequent to the execution of the Terms Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as one enterprise which, in the judgment of a
majority in interest of the Underwriters including any Representatives,
is material and adverse and makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and
payment for the Offered Securities; (ii) any downgrading in the rating
of any debt securities or preferred stock of the Company by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), or any public announcement that
any such organization has under surveillance or review its rating of
any debt securities or preferred stock of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any
material suspension or material limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum
prices for trading on such exchange, or any suspension of trading of
any securities of the Company on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by U.S.
Federal or New York authorities; or (v) any outbreak or escalation of
major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of a majority
in interest of the Underwriters including any Representatives, the
effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Offered Securities.
(d) The Representatives shall have received an opinion, dated
the Closing Date, of Xxxxxxx & Xxxxx LLP, counsel for the Company, to
the effect that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
State of Delaware, with corporate power and authority to own
its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business
as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification,
except where failure to have been so qualified will not,
individually or in the aggregate, have a Material Adverse
Effect;
(ii) If the Offered Securities are debt securities:
The Indenture has been duly authorized, executed and delivered
by the Company and has been duly qualified under the Trust
Indenture
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Act; the Offered Securities have been duly authorized; the
Offered Securities other than any Contract Securities have
been duly executed, authenticated, issued and delivered; the
Indenture and the Offered Securities other than any Contract
Securities constitute, and any Contract Securities, when
executed, authenticated, issued and delivered in the manner
provided in the Indenture and sold pursuant to Delayed
Delivery Contracts, will constitute, valid and legally binding
obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights and to general equity principles; and the Offered
Securities other than any Contract Securities conform in all
material respects, and any Contract Securities, when so issued
and delivered and sold will conform in all material respects,
to the description thereof contained in the Prospectus;
(iii) If the Offered Securities are preferred stock:
The Offered Securities have been duly authorized; the Offered
Securities other than any Contract Securities have been
validly issued and are fully paid and nonassessable; any
Contract Securities, when issued, delivered and sold pursuant
to Delayed Delivery Contracts, will be validly issued, fully
paid and non-assessable; and the Offered Securities other than
any Contract Securities conform in all material respects, and
any Contract Securities, when so issued, delivered and sold,
will conform in all material respects, to the description
thereof contained in the Prospectus; and the stockholders of
the Company have no preemptive rights with respect to the
Offered Securities;
(iv) If the Offered Securities are Common Stock: The
Offered Securities and all other outstanding shares of the
Common Stock of the Company have been duly authorized and
validly issued, are fully paid and nonassessable and conform
in all material respects to the description thereof contained
in the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Offered Securities;
(v) If the Offered Securities are convertible: the
Offered Securities other than any Contract Securities are, and
any Contract Securities, when (if the Offered Securities are
debt securities) executed, authenticated, issued and delivered
in the manner provided in the Indenture and sold pursuant to
Delayed Delivery Contracts or (if the Offered Securities are
preferred stock) when issued, delivered and sold pursuant to
Delayed Delivery Contracts, will be convertible into Common
Stock of the Company in accordance with (if they are debt
securities) the Indenture or (if they are preferred stock)
their terms; the shares of Common Stock initially issuable
upon conversion of the Offered Securities have been duly
authorized and reserved for issuance upon such conversion and,
when issued upon such conversion, will be validly issued,
fully paid and nonassessable; the outstanding shares of Common
Stock have been duly authorized and validly issued, are fully
paid and nonassessable and conform in all material respects to
the description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with
respect to the Common Stock;
(vi) If the Offered Securities are Common Stock or
are convertible into Common Stock: Except as disclosed in the
Prospectus, there are no contracts, agreements or
understandings known to such counsel between the Company and
any person granting such person the right to require the
Company to file a registration statement under the 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 Act;
(vii) The Company is not and, after giving effect to
the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as defined in
the Investment Company Act of 1940.
(viii) The Registration Statement has become
effective under the Act, the Prospectus was filed with the
Commission pursuant to the subparagraph of Rule 424(b)
specified in such opinion on the date specified therein, and,
to the best of the knowledge of such counsel, no stop order
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suspending the effectiveness of the Registration Statement or
any part thereof has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated
under the Act, and the registration statement relating to the
Registered Securities, as of its effective date, the
Registration Statement and the Prospectus, as of the date of
the Terms Agreement, and any amendment or supplement thereto,
as of its date, complied as to form in all material respects
with the requirements of the Act, the Trust Indenture Act and
the Rules and Regulations; and
(ix) The Terms Agreement (including the provisions of
this Agreement) and, if the Offered Securities are debt
securities or preferred stock, any Delayed Delivery Contracts,
have been duly authorized, executed and delivered by the
Company.
Such counsel shall also state that while they have
not themselves checked the accuracy, completeness or fairness
of, or otherwise verified, the information furnished with
respect to other matters in the Registration Statement or
Prospectus, nothing has come to their attention that causes
them to believe that such registration statement, as of its
effective date, the Registration Statement, as of the date of
the Terms Agreement or as of the Closing Date, or any
amendment thereto, as of its date or as of the Closing Date,
contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or
that the Prospectus, as of the date of the Terms Agreement or
as of such Closing Date, or any amendment or supplement
thereto, as of its date or as of the Closing Date, contained
any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; it being understood that such
counsel need express no opinion as to the financial statements
or other financial data contained in or omitted from the
Registration Statement or the Prospectus.
(e) The Representatives shall have received an opinion, dated
the Closing Date, of Xxxxxxx X. Xxxxxxx, General Counsel of the
Company, to the effect that:
(i) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required for the consummation of the transactions
contemplated by the Terms Agreement (including the provisions
of this Agreement) in connection with the issuance or sale of
the Offered Securities by the Company, except such as have
been obtained or as may be required in the future and made or
as may be required in the future under the Act and, if the
Offered Securities are debt securities, the Trust Indenture
Act, and in either case, such as may be required under state
securities laws;
(ii) The execution, delivery and performance of the
Indenture (if the Offered Securities are debt securities), the
Terms Agreement (including the provisions of this Agreement)
and, if the Offered Securities are debt securities or
preferred stock, any Delayed Delivery Contracts and the
issuance and sale of the Offered Securities and, if the
Offered Securities are debt securities or preferred stock,
compliance with the terms and provisions thereof, will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, (i) any statute,
any rule, regulation or order of any governmental agency or
body or any court having jurisdiction over the Company or any
domestic subsidiary of the Company or any of their properties,
or (ii) any agreement or instrument that is filed as an
exhibit to the Registration Statement or as an exhibit to any
filing made by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended, to which the
Company or any such subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject,
or (iii) the charter or by-laws of the Company or any such
subsidiary, except, in the case of (i) and (ii) above, for
such breaches, violations or defaults that would not,
individually or in the aggregate, have a Material Adverse
Effect; and the Company has full power and authority to
authorize, issue and sell the Offered Securities as
contemplated by the Terms Agreement (including the provisions
of this Agreement); and
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(iii) The descriptions in the Registration Statement
and Prospectus of statutes, legal and governmental proceedings
and contracts and other documents are accurate and fairly
present the information required to be shown; and such counsel
do not know of any legal or governmental proceedings required
to be described in the Prospectus which are not described as
required or of any contracts or documents of a character
required to be described in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration
Statement which are not described and filed as required.
Such counsel shall also state that while he has not
himself checked the accuracy, completeness or fairness of, or
otherwise verified, the information furnished with respect to
other matters in the Registration Statement or Prospectus,
nothing has come to his attention that causes him to believe
that such registration statement, as of its effective date,
the Registration Statement, as of the date of the Terms
Agreement or as of the Closing Date, or any amendment thereto,
as of its date or as of the Closing Date, contained any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, as
of the date of the Terms Agreement or as of such Closing Date,
or any amendment or supplement thereto, as of its date or as
of the Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; it
being understood that such counsel need express no opinion as
to the financial statements or other financial data contained
in or omitted from the Registration Statement or the
Prospectus.
(f) The Representatives shall have received from Xxxxx Xxxx &
Xxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities, the Registration Statement, the
Prospectus and other related matters as the Representatives may
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(g) The Representatives shall have received a certificate,
dated the Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of
the Company in this Agreement are true and correct, that the Company
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing
Date, that no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or are contemplated
by the Commission and that, subsequent to the date of the most recent
financial statements in the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole except as set forth in or contemplated by
the Prospectus or as described in such certificate.
(h) The Representatives shall have received a letter, dated
the Closing Date, of KPMG LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred
to in such subsection will be a date not more than three days prior to
the Closing Date for the purposes of this subsection.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. The Lead Underwriter may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters under this Agreement and the Terms Agreement.
6. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Underwriter, its partners, directors
and officers and each person, if any, who controls such Underwriter
within the meaning of Section 15 of the Act, against any losses,
claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as
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such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or
any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company will 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 in or omission or alleged omission from any of
such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in the Terms
Agreement, and provided, further, that with respect to any untrue
statement or alleged untrue statement in or omission or alleged
omission from any preliminary prospectus or preliminary prospectus
supplement the indemnity agreement contained in this subsection (a)
shall not inure to the benefit of any Underwriter from whom the person
asserting any such losses, claims, damages or liabilities purchased the
Offered Securities concerned, to the extent that a prospectus or
prospectus supplement relating to such Offered Securities was required
to be delivered by such Underwriter under the Act in connection with
such purchase and any such loss, claim, damage or liability of such
Underwriter results from the fact that there was not sent or given to
such person, at or prior to the written confirmation of the sale of
such Offered Securities to such person, a copy of the Prospectus
(exclusive of material incorporated by reference) if the Company had
previously furnished copies thereof to such Underwriter.
(b) Each Underwriter will severally and not jointly indemnify
and hold harmless the Company, its directors and officers and each
person, if any, who controls the Company within the meaning of Section
15 of the Act, 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 any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission
or the 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 reliance upon and in conformity with
written information furnished to the Company by such Underwriter
through the Representatives, if any, specifically for use therein, and
will reimburse any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred, it
being understood and agreed that the only such information furnished by
any Underwriter consists of the information described as such in the
Terms Agreement.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than under
subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in
respect of which any indemnified party is or could have
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been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement (i) includes an unconditional
release of such indemnified party from all liability on any claims that
are the subject matter of such action and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to
act by or behalf of an indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and the Underwriters on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and
the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities
as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters
on the other 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 the 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 or
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement
or omission. The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first
sentence of 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 action or claim which is
the subject of this subsection (d). 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
Offered Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which 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 Underwriters'
obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be
in addition to any liability which 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 shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each director of the Company, to each officer of the Company who has
signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities under the Terms Agreement
and the aggregate principal amount (if debt securities) or number of shares (if
preferred stock or Common Stock) of Offered Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount (if debt securities) or number of shares (if
preferred stock or Common Stock) of Offered Securities, the Lead Underwriter may
make arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters shall
be obligated severally, in proportion to their respective commitments under the
Terms Agreement (including the provisions of this Agreement), to purchase the
Offered Securities that such defaulting Underwriters agreed but failed to
purchase. If any Underwriter or Underwriters so default and the aggregate
principal amount (if debt securities) or number of shares (if preferred stock or
Common Stock) of Offered Securities with respect to which such default or
defaults occur exceeds 10% of the total principal amount (if debt securities) or
number of shares (if preferred stock or Common Stock) of Offered Securities and
arrangements satisfactory to the Lead Underwriter and the Company for the
purchase of such Offered Securities by other persons are not made within 36
hours after such
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default, the Terms Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Company, except as provided in Section 8. As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default. If the Offered Securities are debt
securities or preferred stock, the respective commitments of the several
Underwriters for the purposes of this Section shall be determined without regard
to reduction in the respective Underwriters' obligations to purchase the
principal amounts (if debt securities) or numbers of shares (if preferred stock)
of the Offered Securities set forth opposite their names in the Terms Agreement
as a result of Delayed Delivery Contracts entered into by the Company.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to the Terms Agreement (including the provisions of this Agreement)
will remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by or on behalf of any Underwriter,
the Company or any of their respective representatives, officers or directors or
any controlling person, and will survive delivery of and payment for the Offered
Securities. If the Terms Agreement is terminated pursuant to Section 7 or if for
any reason the purchase of the Offered Securities by the Underwriters is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 4 and the respective obligations of the
Company and the Underwriters pursuant to Section 6 shall remain in effect. If
the purchase of the Offered Securities by the Underwriters is not consummated
for any reason other than solely because of the termination of the Terms
Agreement pursuant to Section 7 or the occurrence of any event specified in
clause (iii), (iv) or (v) of Section 5(c), the Company will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Offered Securities.
9. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to them at their address furnished to the Company in writing for the purpose of
communications hereunder or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at 0000 Xxxx Xxxxxxx Xxxxxx, Xxxxxx, XX
00000, Attention: General Counsel.
10. Successors. The Terms Agreement (including the provisions of this
Agreement) will inure to the benefit of and be binding upon the Company and such
Underwriters as are identified in the Terms Agreement and their respective
successors and the officers and directors and controlling persons referred to in
Section 6, and no other person will have any right or obligation hereunder.
11. Representation of Underwriters. Any Representatives will act for
the several Underwriters in connection with the financing described in the Terms
Agreement, and any action under such Terms Agreement (including the provisions
of this Agreement) taken by the Representatives jointly or by the Lead
Underwriter will be binding upon all the Underwriters.
12. Counterparts. The Terms Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. Applicable Law. THIS AGREEMENT AND THE TERMS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to the Terms Agreement
(including the provisions of this Agreement) or the transactions contemplated
thereby.
15
18
ANNEX I
(Three copies of this Delayed Delivery Contract should be
signed and returned to the address shown below so as to
arrive not later than 9:00 A.M.,
New York time, on ...................................., 20...(1)
DELAYED DELIVERY CONTRACT
[Insert date of initial public offering]
SYBRON DENTAL SPECIALTIES, INC.
c/o CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Madison Avenue
New York, N.Y. 10010-3629
Attention: Investment Banking Department - Transactions Advisory Group
Gentlemen:
The undersigned hereby agrees to purchase from Sybron Dental
Specialties, Inc., a Delaware corporation ("COMPANY"), and the Company agrees to
sell to the undersigned, [If one delayed closing, insert--as of the date hereof,
for delivery on , 20 ("DELIVERY DATE"),]
[$]..............[shares]
--principal amount--of the Company's [Insert title of securities]
("SECURITIES"), offered by the Company's Prospectus dated , 20 and a Prospectus
Supplement dated , 20 relating thereto, receipt of copies of which is hereby
acknowledged, at-- % of the principal amount thereof plus accrued interest, if
any,--$ per share plus accrued dividends, if any,--and on the further terms and
conditions set forth in this Delayed Delivery Contract ("CONTRACT").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in the--principal--amounts
set forth below:
PRINCIPAL AMOUNT
DELIVERY DATE NUMBER OF SHARES
------------
(1) Insert date which is third full business day prior to Closing
Date under the Terms Agreement.
19
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase
for delivery on--the--each--Delivery Date shall be made to the Company or its
order in Federal (same day) funds by certified or official bank check or wire
transfer to an account designated by the Company, at the office of at A.M.
on--the--such--Delivery Date upon delivery to the undersigned of the Securities
to be purchased by the undersigned--for delivery on such Delivery Date--in
definitive [If debt issue, insert--fully registered] form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to--the--such--Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on--the--each--Delivery Date shall
be subject only to the conditions that (1) investment in the Securities shall
not at--the--such--Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total--principal
amount--number of shares--of the Securities less the--principal amount---number
of shares--thereof covered by this and other similar Contracts. The undersigned
represents that its investment in the Securities is not, as of the date hereof,
prohibited under the laws of any jurisdiction to which the undersigned is
subject and which governs such investment.
Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by--a copy--copies--of the opinion[s] of counsel for
the Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
20
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
................................................
(NAME OF PURCHASER)
By..............................................
................................................
(TITLE OF SIGNATORY)
................................................
................................................
(ADDRESS OF PURCHASER)
Accepted, as of the above date.
SYBRON DENTAL SPECIALTIES, INC.
By .................................
[Insert Title]
