Exhibit 1(a)
FORM OF UNDERWRITING AGREEMENT
THE VALSPAR CORPORATION
_______________, 1999
To: The Representatives named in Schedule I hereto of the Underwriters named in
Schedule II hereto
Dear Sirs:
The Valspar Corporation, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule II hereto (the "Underwriters"), the
principal amount set forth in Schedule II hereto of its debt securities
identified on Schedule I hereto (the "Securities"), to be issued under an
indenture, dated as of May , 1999, as amended or supplemented from time to time
(the "Indenture") between the Company and _____________, as Trustee (the
"Trustee"), less the principal amount of Securities covered by Delayed Delivery
Contracts (as defined in Section 3 hereof), if any, as provided in Section 3
hereof and as may be specified in Schedule II hereto (any Securities to be
covered by Delayed Delivery Contracts being herein sometimes referred to as
"Contract Securities" and the Securities to be purchased by the Underwriters
(after giving effect to the deduction, if any, for Contract Securities) being
herein sometimes referred to as "Underwriters' Securities"). If the firm or
firms listed in Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms "Underwriters" and "Representatives" as used
herein shall each be deemed to refer to such firm or firms.
1. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) A registration statement on Form S-3 (File No.333-
_______), including a prospectus for use in connection with the
Securities under the Securities and Exchange Act of 1933, as amended
(the "Act") in respect of the Securities, has been filed with the
Securities and Exchange Commission (the "Commission") in the form
heretofore delivered to you and, excluding exhibits to such
registration statement, but including all documents incorporated by
reference therein, to you for each of the other Underwriters; such
registration statement, in such form, has been declared effective by
the Commission; no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission; no
amendment or supplement thereto or to any document incorporated by
reference therein has heretofore been filed with the Commission; such
prospectus included for use in connection with the Securities under
the Act meets the requirements of the Act and the rules and
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regulations thereunder for use of such prospectus in connection with
the Securities; and a supplemented prospectus relating to the
Securities, in the form heretofore delivered to you, is now proposed
to be filed with the Commission pursuant to Rule 424 under the Act
(any such prospectus, accompanied by a preliminary prospectus
supplement relating to the Securities, being hereinafter called a
"Preliminary Prospectus"; such registration statement, including all
exhibits thereto and the documents incorporated therein by reference
as amended at the time each such registration statement became
effective, being hereinafter called the "Registration Statement"; and
such prospectus, accompanied by a definitive prospectus supplement
relating to the Securities being hereinafter called the "Prospectus";
and any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be, and any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus, shall be
deemed to refer to and include any documents filed after such date
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference);
(b) No order preventing or suspending the use of any
Preliminary Prospectus or Prospectus has been issued by the
Commission and each Preliminary Prospectus or Prospectus, at the time
of filing thereof, conformed in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and regulations of
the Commission thereunder, and 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; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the
Company by an Underwriter through you expressly for use therein;
(c) The documents incorporated by reference in the
Prospectus, when they were filed with the Commission, conformed in
all material respects to the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary
to make the statements therein not misleading and any further
documents so filed and incorporated by reference, when they are filed
with the Commission, will conform in all material respects to the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through you expressly for use therein;
(d) The Registration Statement, as of the applicable
effective date, conformed and the Prospectus and any amendments or
supplements to the Registration Statement or the
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Prospectus, when they become effective or are filed with the
Commission, as the case may be, will conform in all material respects
to the requirements of the Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder and did not and
will not, as of the applicable effective date of the Registration
Statement and any amendment thereto and as of the applicable filing
date of the Prospectus or any supplement thereto, 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, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter through you expressly for use
therein;
(e) Since the respective dates as of which information is
given in the Registration Statement and in the Prospectus, there have
not been, and prior to the Time of Delivery (as defined in Section 4
hereof) there will not be, any material adverse change in or
affecting the general affairs, financial position or results of
operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus;
(f) The Company and its subsidiaries have good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as
do not interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries; and any real property
and buildings held under lease by the Company and its subsidiaries
are held by them under valid, subsisting and enforceable leases with
such exceptions as are not material and do not interfere with the use
made and proposed to be made of such property and buildings by the
Company and its subsidiaries;
(g) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority (corporate and other) to
own its properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of
each other jurisdiction where, in light of the nature of the business
transacted or the property owned by it, such qualification is
necessary and the failure so to qualify might permanently impair
title to property material to its operation or its right to enforce a
material contract against others or expose it to substantial
liabilities in such jurisdiction; and each subsidiary of the Company
has been duly incorporated and is validly existing as a corporation
in good standing under the laws of its jurisdiction of incorporation
and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of
each other jurisdiction where, in light of the nature of the business
transacted or the property owned by it, such qualification is
necessary and the failure so to qualify might permanently impair
title to property material to its operation or its right to enforce a
material contract against others or expose it to substantial
liabilities in such jurisdiction;
(h) The Company has an authorized capitalization as set
forth or incorporated in the Prospectus, and all of the issued shares
of capital stock of the Company have been duly
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and validly authorized and issued and are fully paid and
non-assessable; and all of the issued shares of capital stock of each
wholly owned subsidiary of the Company have been duly and validly
authorized and 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;
(i) The Securities have been duly authorized, and, when
issued and delivered pursuant to this Agreement, and, in the case of
any Contract Securities, pursuant to Delayed Delivery Contracts (as
defined in Section 3 hereof) with respect to such Contract
Securities, will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations
of the Company entitled to the benefits provided by the Indenture;
the Indenture has been duly authorized, executed and delivered and
constitutes a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Securities and the Indenture will conform to the
description thereof in the Prospectus; and in the event any of the
Securities are purchased pursuant to Delayed Delivery Contracts, each
of such Delayed Delivery Contracts has been duly authorized by the
Company and, when executed and delivered by the Company and the
purchaser named therein, will constitute a valid and legally binding
agreement of the Company enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(j) The issue and sale of the Securities and the compliance
by the Company with all of the provisions of the Securities, the
Indenture, each of the Delayed Delivery Contracts, if any, and this
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon
any of the property or assets of the Company or any of its
subsidiaries pursuant to the terms of, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, nor will such action result in any violation of the
provisions of the Company's Charter or By-laws or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or
any of their properties; and no consent, approval authorization,
order, registration or qualification of or with any court or
governmental agency or body is required for the issue and sale of the
Securities or the consummation of the other transactions contemplated
by this Agreement or any Delayed Delivery Contract or the Indenture,
except such as have been obtained, or will have been obtained at the
Time of Delivery, under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or Blue Sky laws in
connection with the purchase and/or distribution of the Securities by
the Underwriters;
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(k) 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 of the Company or any of its subsidiaries is the
subject, other than as set forth in the Prospectus and other than
litigation or governmental proceedings incident to the kind of
business conducted by the Company and its subsidiaries which, if
determined adversely to the Company and its subsidiaries, would not
individually or in the aggregate have a material adverse effect on
the financial position, shareholders' investment or results of
operations 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; and
(l) Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent
public accountants as required by the Act and the rules and
regulations of the Commission thereunder.
2. Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price set forth in Schedule I hereto the principal amount of
Securities set forth opposite the name of such Underwriter in Schedule II
hereto, which principal amount shall be subject to reduction pursuant to section
3 hereof.
3. Upon the authorization by the Company of the release of the
Securities, the several Underwriters propose to offer the Securities for sale
upon the terms and conditions set forth in the Prospectus. The Company may
specify in Schedule I hereto that the Underwriters are authorized to solicit
offers to purchase Securities from the Company pursuant to delayed delivery
contracts (herein called "Delayed Delivery Contracts"), substantially in the
form of Schedule IV attached hereto, but with such changes therein as the
Underwriters and the Company may authorize or approve. If so specified, the
Underwriters will endeavor to make such arrangements, and as compensation
therefor the Company will pay to the Underwriters, for their respective
accounts, at the time specified in Section 4 hereof, such commission, if any, as
may be set forth in Schedule I. Delayed Delivery Contracts, if any, are to be
with the investors of the types described in the Prospectus and subject to other
conditions therein set forth. The Underwriters will not have any responsibility
in respect of the validity or performance of any Delayed Delivery Contracts.
The principal amount of Contract Securities to be deducted from the
principal amount of Securities to be purchased by each Underwriter as set forth
in Schedule II hereto shall be, in each case, the principal amount of Contract
Securities which the Company has been advised by the Underwriters have been
attributed to such Underwriter, provided, that if the Company has not been so
advised, the amount of Contract Securities to be so deducted shall be, in each
case, that proportion of Contract Securities which the principal amount of
Securities set forth opposite the name of such Underwriter in Schedule II hereto
bears to the total principal amount of the Securities set forth in Schedule II
hereto (rounded as the Underwriters may determine). The total principal amount
of Underwriters' Securities to be purchased by all the Underwriters hereunder
shall be the total principal amount of Securities set forth in Schedule II
hereto less the principal amount of the Contract Securities. The Company will
deliver to the Underwriters not later than 3:30 p.m., New York City time, on the
third business day preceding the Time of Delivery (or such other time and date
as the
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Underwriters and the Company may agree upon in writing) a written notice setting
forth the principal amount of Contract Securities.
4. Underwriters' Securities to be purchased by each Underwriter
hereunder shall be delivered by or on behalf of the Company to you for the
account of such Underwriter, against payment by such Underwriter or on its
behalf of the purchase price therefor in same-day funds, at the office of
___________________, ___________________________________________,
____________________________________, at ____ a.m., ___________________ time, on
[Closing Date], or at such other time and date as you and the Company may agree
upon in writing, such time and date being herein called the "Time of Delivery".
The Underwriters' Securities will be delivered by the Company to you in the form
of a Global Security, representing all of the Securities, which will be
deposited by you on behalf of the Underwriters, with The Depository Trust
Company, or its nominee, for credit to the respective accounts of the
Underwriters.
Concurrently with the delivery of any Contract Securities to the
purchasers thereof pursuant to Delayed Delivery Contracts, the Company will
deliver to the Underwriters for their respective accounts a check payable to the
order of [lead Underwriter] in the amount of any compensation payable by the
Company to the Underwriters in respect of any Delayed Delivery Contracts as
provided in Section 3 hereof and in Schedule I hereto.
5. The Company agrees with each of the Underwriters:
(a) To make no further amendment or supplement to the
Registration Statement or to the Prospectus prior to the Time of
Delivery which shall be disapproved by you promptly after
reasonable notice thereof; to advise you promptly of any such
amendment or supplement after the Time of Delivery and furnish
you with copies thereof and to file promptly all reports and
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
Securities; to advise you, promptly after it receives notice
thereof, of the time when any amendment to the Registration
Statement has become effective or any supplement to the
Prospectus or any amended Prospectus has been filed, of the
issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or
the Prospectus, of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or
supplementing of the Registration Statement or of the Prospectus
or for additional information; and in the event of the issuance
of any stop order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities for offering and
sale under the securities laws of such
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jurisdictions as you may request and to comply with such laws so
as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete
the distribution, provided, that in connection therewith the
Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any
jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus in
such quantities as you may from time to time reasonably request,
and if the delivery of a prospectus is required at any time prior
to the expiration of nine months after the time of issue of the
Prospectus and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary to amend or supplement
the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to
notify you and upon your request to file such document and to
prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as you may from time to time
reasonably request of an amended Prospectus or a supplement to
the Prospectus which will correct such statement or omission or
effect such compliance; and in case any Underwriter is required
to deliver a prospectus in connection with sales of any of the
Securities at any time nine months or more after the time of
issue of the Prospectus, upon your request but at the expense of
such Underwriter, to prepare and deliver to such Underwriter as
many copies as you may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its security holders as soon
as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement, an
earnings statement of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of the Act; and
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
(except as otherwise expressly provided in Section 5(c) hereof) amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing this Agreement, the
Indenture, any Delayed Delivery Contracts, and the Blue Sky and Legal Investment
Memoranda; (iii) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky and legal investment surveys; (iv) any fees charged by securities
rating services for rating the Securities; (v) the cost of preparing the
Securities; (vi) the fees and expenses of the Trustee and any agent of the
Trustee and
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the fees and disbursements of counsel for the Trustee and any such agent in
connection with the Indenture and the Securities; and (vii) all of the other
costs and expenses incident to the performance of its obligations hereunder and
under any Delayed Delivery Contracts which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, Section 8 and Section 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder shall be subject, in
their discretion, to the condition that all representations and warranties and
other statements of the Company herein are, at and as of the Time of Delivery,
true and correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding
for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your
reasonable satisfaction;
(b) ________________, counsel for the Underwriters, shall have
furnished to you such opinion or opinions, dated the Time of
Delivery, with respect to the validity of the Indenture, the
Securities, the Delayed Delivery Contracts, if any, the
Registration Statement, the Prospectus, and other related matters
as you may reasonably request, and such counsel shall have
received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) ▇▇▇▇ ▇▇▇▇, Senior Vice President and Secretary of the
Company, shall have furnished to you his written opinion, dated
the Time of Delivery, in form and substance satisfactory to you,
to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the state of Delaware, with power and authority (corporate
and other) to own its properties and conduct its business as
described in the Prospectus;
(ii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction where, in
light of the nature of the business transacted or the
property owned by it, such qualification is necessary and
the failure so to qualify might in such counsel's opinion
permanently impair title to property material to its
operations or its right to enforce a material contract
against others or expose it to substantial liabilities in
such jurisdiction (such counsel being entitled to rely in
respect of the opinion in this clause upon opinions of local
counsel and in respect of matters of fact upon certificates
of officers of
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the Company, provided, that such counsel shall state that he
believes that both you and he are justified in relying upon
such opinions and certificates);
(iii) Each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in
good standing under the laws of its jurisdiction of
incorporation, and has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction where, in
light of the nature of the business transacted or the
property owned by it, such qualification is necessary and
the failure so to qualify might in such counsel's opinion
permanently impair title to property material to its
operations or its right to enforce a material contract
against others or expose it to substantial liabilities in
such jurisdiction; all of the issued shares of capital stock
of each subsidiary have been duly and validly authorized and
issued and are fully paid and non-assessable; and all of the
outstanding shares of capital stock of each such subsidiary
are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims (such
counsel being entitled to rely in respect of the opinion in
this clause upon opinions of local counsel and in respect of
matters of fact upon certificates of officers of the Company
or its subsidiaries, provided, that such counsel shall state
that he believes that both you and he are justified in
relying upon such opinions and certificates); and
(iv) To the best of such counsel's knowledge 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 of the Company or any of its subsidiaries is
the subject, other than as set forth in the Prospectus and
other than litigation or governmental proceedings which
individually and in the aggregate are not material to the
Company and its subsidiaries; and to the best of such
counsel's knowledge no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others;
(d) ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.L.L.P., counsel for the Company, shall
have furnished to you their written opinion, dated the Time of
Delivery, in form and substance satisfactory to you, to the
effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the state of Delaware, with power and authority (corporate
and other) to own its properties and conduct its business as
described in the Prospectus;
(ii) To the best of such counsels' knowledge 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 of the Company or any of its subsidiaries is
the subject, other than as set forth or incorporated in the
Prospectus and other than litigation or governmental
proceedings which
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individually and in the aggregate are not material to the
Company and its subsidiaries; and to the best of such
counsels' knowledge no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others;
(iii) This Agreement has been duly authorized, executed and
delivered by the Company; and in the event any of the
Securities are to be purchased pursuant to Delayed Delivery
Contracts, each of the Delayed Delivery Contracts has been
duly authorized, executed and delivered by the Company and,
assuming such contract has been duly executed and delivered
by the purchaser named therein, constitutes a valid and
legally binding agreement of the Company enforceable in
accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors'
rights and to general equity principles; and any Delayed
Delivery Contracts conform to the description thereof in the
Prospectus;
(iv) The Securities have been duly authorized; the
Underwriters' Securities have been duly executed,
authenticated, issued and delivered and constitute valid and
legally binding obligations of the Company entitled to the
benefits provided by the Indenture; the Contract Securities,
if any, when executed, authenticated, issued and delivered
pursuant to the Indenture and the Delayed Delivery
Contracts, if any, will constitute valid and legally binding
obligations of the Company entitled to the benefits provided
by the Indenture; and the Securities and the Indenture
conform to the descriptions thereof in the Prospectus;
(v) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and
legally binding instrument, enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and
to general equity principles; and the Indenture has been
duly qualified under the Trust Indenture Act;
(vi) The issue and sale of the Securities and the compliance
by the Company with all of the provisions of the Securities,
the Indenture, each of the Delayed Delivery Contracts and
this Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of
the property or assets of the Company or any of its
subsidiaries pursuant to the terms of, any indenture,
mortgage, deed of trust, loan agreement or other agreement
or instrument known to such counsel to which the Company or
any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the
property or assets of the
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Company or any of its subsidiaries is subject, nor will such
action result in any violation of the provisions of the
Company's Charter or By-laws or any statute or any order,
rule or regulation applicable to the Company and known to
such counsel of any court or governmental agency or body
having jurisdiction over the Company or any of its
subsidiaries or any of their properties; and no consent,
approval, authorization, order, registration or
qualification of or with any court or governmental agency or
body is required for the issue and sale of the Securities or
the consummation of the other transactions contemplated by
this Agreement or the Indenture or any of the Delayed
Delivery Contracts, except such as have been obtained under
the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications
as may be required under state securities or Blue Sky laws
in connection with the purchase and/or distribution of the
Securities by the Underwriters;
(vii) The documents incorporated by reference in the
Prospectus (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion), when they were filed with the Commission, complied
as to form in all material respects with the requirements of
the Exchange Act and the rules and regulations of the
Commission thereunder; and such counsel have no reason to
believe that any of such documents, when they were so filed,
contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the
light of the circumstances under which they were made when
such documents were so filed, not misleading (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion);
(viii) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the
Company prior to the Time of Delivery (other than the
financial statements or financial schedules therein, as to
which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the
Act and the Trust Indenture Act and the rules and
regulations thereunder; such counsel have no reason to
believe that the Registration Statement contained as of its
effective date or that the Prospectus contained as of the
date of the supplement comprising a part thereof, or that
either the Registration Statement or the Prospectus contains
as of the Time of Delivery (or that any further amendment or
supplement thereto made by the Company prior to the Time of
Delivery contained as of its date or contains as of the Time
of Delivery) an untrue statement of material fact or that
the Registration Statement omitted as of such effective
date, or that the Prospectus omits as of the Time of
Delivery to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; and such counsel does not know of any contracts
or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus or
11
required to be described in the Registration Statement or in
the Prospectus which are not filed or incorporated by
reference or described as required; and
(ix) The Company has an authorized capitalization as set
forth in the Prospectus;
(e) At the Time of Delivery, Ernst & Young LLP, shall have
furnished to you a letter or letters, dated the Time of Delivery,
in form and substance satisfactory to you, to the effect set
forth in Schedule III hereto;
(f) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference in the
Prospectus any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, other than as set forth or
contemplated in the Prospectus; and (ii) since the respective
dates as of which information is given in the Prospectus there
shall not have been any decrease in the capital stock or any
increase in the long-term debt (excluding capital leases) of the
Company or any of its subsidiaries or a change, or any
development involving a prospective change, in or affecting the
general affairs, management, financial position, shareholders'
investment or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in
clause (i) or (ii), is in your judgment so material and adverse
as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities on the terms
and in the manner contemplated in the Prospectus;
(g) On or after the date of this Agreement, there shall not have
occurred any of the following: (i) a suspension or material
limitation in trading in securities generally on the New York
Stock Exchange; (ii) a general moratorium on commercial banking
activities in New York declared by either Federal or New York
State authorities; or (iii) an outbreak or escalation of
international military hostilities involving the United States or
the declaration by the United States of a national emergency or
war, the effect of any such event specified in this clause (iii)
in your judgment makes it impractical or inadvisable to proceed
with the public offering or the delivery of the Underwriters'
Securities on the terms and in the manner contemplated by the
Prospectus; and
(h) On or after the date of this Agreement (i) no downgrading
shall have occurred in the rating accorded the Company's debt
securities or preferred stock by any "nationally recognized
statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii)
no such organization shall have publicly announced that it has
under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities
or preferred stock the effect of which, in any event specified in
clause (i) or (ii), in
12
your judgment makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Securities on the
terms and in the manner contemplated in the Prospectus; and
(i) The Company shall have furnished or caused to be furnished to
you at the Time of Delivery certificates of officers of the
Company satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of
the Time of Delivery and as to the performance by the Company of
all of its obligations hereunder to be performed at or prior to
the Time of Delivery and the Company also shall have furnished to
you a certificate of officers of the Company satisfactory to you
as to the matters set forth in subsections (a), (f) and (h) of
this Section.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the
Registration Statement in the form in which it was initially
declared effective, or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any
such action or claim; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the
Registration Statement or such Prospectus or any such amendment
or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through
you expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration
Statement in the form in which it was initially declared
effective, or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or such Prospectus or any
such amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by such
Underwriter through you expressly for use therein; and will
reimburse the
13
Company for any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending any
such action or claim.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to
such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of
investigation.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other from
the offering of the Securities. If, however, the allocation
provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also
the relative fault of the 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 (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received
by the Company on the one hand and 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, in each case as set
forth in the table on the cover page of the Prospectus. 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
14
information supplied by the Company or the Underwriters and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed
to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by
which the total price at which the 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 8 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 8 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 officer and director of
the Company and to each person, if any, who controls the Company
within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Underwriters' Securities which it has agreed to
purchase hereunder, you may in your discretion arrange for you or
another party or other parties to purchase such Underwriters'
Securities on the terms contained herein. If within thirty-six
hours after such default by any Underwriter you do not arrange
for the purchase of such Underwriters' Securities, then the
Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties
satisfactory to you to purchase such Underwriters' Securities on
such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the
purchase of such Underwriters' Securities, or the Company
notifies you that it has so arranged for the purchase of such
Underwriters' Securities, you or the Company shall have the right
to postpone the Time of Delivery for a period of not more than
seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus,
or in any other documents or arrangements,
15
and the Company agrees to file promptly any amendments to the
Registration Statement or the Prospectus which in your opinion
may thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under the
Section with like effect as if such person had originally been a
party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase
of the Underwriters' Securities of a defaulting Underwriter or
Underwriters by you and the Company as provided in subsection (a)
above, the aggregate principal amount of such Underwriters'
Securities which remains unpurchased does not exceed one-eleventh
of the aggregate principal amount of all the Securities, then the
Company shall have the right to require each non-defaulting
Underwriter to purchase the principal amount of Underwriters'
Securities which such Underwriter agreed to purchase hereunder
and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the principal amount of
Securities which such Underwriter agreed to purchase hereunder)
of the Underwriters' Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If after giving effect to any arrangements for the purchase
of the Underwriters' Securities of a defaulting Underwriter or
Underwriters by you and the Company as provided in subsection (a)
above the aggregate principal amount of Underwriters' Securities
which remains unpurchased exceeds one-eleventh of the aggregate
principal amount of all the Securities, or if the Company shall
not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Underwriters'
Securities of a defaulting Underwriter or Underwriters, then this
Agreement shall thereupon terminate, without liability on the
part of any non-defaulting Underwriter or the Company, except for
the expenses to be borne by the Company and the Underwriters as
provided in Section 6 hereof and the indemnity and contribution
agreements in Section 8 hereof; but nothing herein shall relieve
a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
except as provided in Section 6 and Section 8 hereof; but if for any other
reason the Underwriters' Securities are not delivered by or on behalf of the
Company as provided herein, the Company will reimburse the Underwriters through
you for all out-of-pocket expenses approved in writing by you, including fees
and disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery
16
of the Securities, but the Company shall then be under no further liability to
any Underwriter except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the Company shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by [lead Underwriter] on behalf of you as the
Representatives and may assume that such statement, request, notice or agreement
has been duly authorized by such Underwriter.
All statements, requests, notices and agreements hereunder shall be
in writing or by telegram if promptly confirmed in writing, and if to the
Underwriters, shall be sufficient in all respects if delivered or sent by
registered mail to you as the Representatives in care of [name and address of
lead Underwriter], Attention: __________________; and if to the Company, shall
be sufficient in all respects if delivered or sent by registered mail to The
Valspar Corporation,1101 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Treasurer; provided, however, that any notice to an Underwriter
pursuant to Section 8(c) hereof shall be delivered or sent by registered mail to
such Underwriter at its address set forth in its Underwriters' Questionnaire or
telex constituting such Questionnaire delivered to the Company.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and, to the extent provided in
Sections 8 and10 hereof, the officers and directors of the Company and each
person who controls the Company or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Securities from any Underwriter shall be deemed a successor or assign
by reason merely of such purchase.
14. Time shall be of the essence in connection with this Agreement.
15. This Agreement shall be construed in accordance with the laws of
the State of Minnesota.
16. This Agreement may be executed by any one or more of the parties
hereto 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
instrument.
If the foregoing is in accordance with your understanding, please
sign and return to us two counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement between each of the Underwriters and
the Company.
It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in a form of a
telex, copies of which, to the extent practicable and upon request, shall be
submitted to the Company for examination, but without warranty on your part as
to the authority of the senders thereof.
17
Very truly yours,
THE VALSPAR CORPORATION
By
----------------------------------------
Accepted as of the date hereof at New York,
New York:
[REPRESENTATIVE(S)]
By
----------------------------------------
On behalf of each of the Underwriters
18
SCHEDULE I
Underwriting Agreement dated [pricing date]
Registration Statement No. 333-____________
Representatives:
Description of Securities:
Title:
Maturity:
Interest Rate:
Interest Payment Dates:
Aggregate principal amount and currency:
Purchase price and currency: $______________ plus accrued interest from [initial
interest accrual date]
Sinking fund provisions: [The Securities shall not be entitled to any sinking
fund.]
Redemption provisions: [The Securities are not redeemable prior to maturity.]
Other provisions: [Defeasance provisions set forth in Articles Four and Fifteen
of the Indenture shall apply to the Securities]
Closing Date, Time and Location: [Closing Date] at ____ a.m. at the office of
----------------------, -------------------------------------------,
---------------------------, --------.
S-I-1
SCHEDULE II
PRINCIPAL AMOUNT
OF SECURITIES
UNDERWRITER TO BE PURCHASED
$
$
$
$
Total $
S-II-1
SCHEDULE III
Pursuant to Section 7(e) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules examined by them and included or
incorporated by reference in the Registration Statement or Prospectus comply as
to form in all material respects with the applicable accounting requirements of
the Act or the Exchange Act, as applicable, and the related published rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of Certified
Public Accountants of the consolidated interim financial statements, selected
financial data, pro forma financial information and/or condensed financial
statements derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports thereon, copies
of which have been furnished to the Representatives;
(iii) In their opinion, the unaudited selected financial information
with respect to the consolidated results of operations and financial position of
the Company for the five most recent fiscal years included in the Prospectus and
included or incorporated by reference in Item 6 of the Company's Annual Report
on Form 10-K for the most recent fiscal year agrees with the corresponding
amounts (after restatement where applicable) in the audited consolidated
financial statements for such fiscal years which were included or incorporated
by reference in the Company's Annual Reports on Form 10-K for such fiscal years;
(iv) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards, consisting
of a reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim financial
statements of the Company and its subsidiaries, inspection of the minute books
of the Company and its subsidiaries since the date of the latest audited
financial statements included or incorporated by reference in the Prospectus,
inquiries of officials of the Company and its subsidiaries responsible for
financial and accounting matters and such other inquiries and procedures as may
be specified in such letter, nothing came to their attention that caused them to
believe that:
(A) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
changes in financial position included or incorporated by reference
in the Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Exchange
Act as its applies to Form 10-Q and the related published rules and
regulations thereunder or are not in conformity with generally
accepted accounting principles for interim financial statements
applied on a basis substantially consistent with the basis for the
audited consolidated statements of income, consolidated
S-III-1
balance sheets and consolidated statements of changes in financial
position included or incorporated by reference in the Company's
Annual Report on Form 10-K for the most recent fiscal year;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any such
unaudited data and items were not determined on a basis substantially
consistent with the basis for the corresponding amounts in the
audited consolidated financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the most
recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the unaudited
condensed financial statements referred to in Clause (A) and any
unaudited income statement data and balance sheet items included in
the Prospectus and referred to in Clause (B) were not determined on a
basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in the
Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the published rules
and regulations thereunder;
(E) as of a specified date not more than five days prior to
the date of such letter, when compared with amounts shown in the
latest balance sheet included or incorporated by reference in the
Prospectus, there have been
o any changes in the consolidated capital stock (other than
issuances of capital stock upon the exercise of stock
options, pursuant to performance shares or restricted stock
awards and upon the conversion of convertible securities,
in each case which were outstanding on the date of the
latest balance sheet included or incorporated by reference
in the Prospectus), or
o any increase in the consolidated long-term debt (excluding
capital leases) of the Company and its subsidiaries, or
o any decrease in consolidated working capital greater than
___% of the Company's most recent fiscal year-end total
consolidated assets (treating all commercial paper as a
current liability), or
o any decreases in consolidated shareholders' investment
greater than ____% of the Company's most recent fiscal
year-end total consolidated assets (excluding decreases
resulting from normally recurring dividends), or
S-III-2
o any decreases or increases in other items specified by the
Representatives
in each case except for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are
described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in Clause (E), when compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Representatives, there were
o any decreases in consolidated net sales or earnings before
income taxes and extraordinary charges, or
o any decreases in the total or per share amounts of
consolidated net income or other items specified by the
Representatives, or
o any increases in any items specified by the Representatives
in each case except for increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such
letter; and
(v) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures referred
to in paragraphs (iii) and (iv) above, they have carried out certain specified
procedures, not constituting an examination in accordance with generally
accepted auditing standards, with respect to certain amounts, percentages and
financial information specified by the Representatives which are derived from
the general accounting records of the Company and its subsidiaries, which appear
in the Prospectus (excluding documents incorporated by reference), or in Part II
of, or in exhibits and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the Prospectus
specified by the Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of the Company
and its subsidiaries and have found them to be in agreement.
S-III-3
SCHEDULE IV
DELAYED DELIVERY CONTRACT
The Valspar Corporation
Attention: Treasurer
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from The Valspar
Corporation (hereinafter called the "Company"), and the Company agrees to sell
to the undersigned, $__________ [name of security] (hereinafter called
the "Securities"), offered by the Company's Prospectus dated _________ and
Prospectus Supplement dated _____________, receipt of a copy of which is hereby
acknowledged, at a purchase price of _______% of the principal amount thereof,
plus accrued interest from the date from which interest accrues as set forth
below, and on the further terms and conditions set forth in this contract.
The undersigned will purchase the Securities from the Company on
_______, ____ (the "Delivery Date") and interest on the Securities so purchased
will accrue from _______, ____.
Payment for the Securities which the undersigned has agreed to
purchase on the Delivery Date shall be made to the Company or its order by wire
transfer to a bank account specified by the Company, on the Delivery Date upon
delivery to the undersigned of the Securities then to be purchased by the
undersigned in definitive 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 Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for the Securities on the Delivery Date shall be subject to the
condition that the purchase of the Securities to be made by the undersigned
shall not on the Delivery Date be prohibited under the laws of the jurisdiction
to which the undersigned is subject. The obligation of the undersigned to take
delivery of and make payment for the Securities shall not be affected by the
failure of any purchaser to take delivery of and make payment for the Securities
pursuant to other contracts similar to this contract.
The undersigned understands that underwriters (the "Underwriters")
are also purchasing Securities from the Company, but that the obligations of the
undersigned hereunder are not contingent on such purchases. 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 of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith.
S-IV-1
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Securities
hereby agreed to be purchased by it under the laws of the jurisdiction to which
the undersigned is subject.
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.
This contract may be executed by either of the parties hereto 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 instrument.
It is understood that the acceptance by the Company of any Delayed
Delivery contract (including this contract) is in the Company's sole discretion
and that, without limiting the foregoing, acceptances of such contracts 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 by the Company.
Yours very truly,
By: _________________________________
(Signature)
_________________________________
(Name and Title)
_________________________________
(Address)
Accepted: ____________________, ____
THE VALSPAR CORPORATION
By: ________________________________
[Title]
S-IV-2
