Exhibit 1.4
POLAROID CORPORATION
[CONVERTIBLE] DEPOSITARY SHARES
FORM OF UNDERWRITING AGREEMENT
New York, New York
, 1999
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Polaroid Corporation, a Delaware corporation (the "Company"), may issue
and sell from time to time series of its [convertible] preferred stock, par
value $1.00 per share, registered under the registration statement[s] referred
to in Paragraph 1(a) hereof (the "Preferred Stock"). [The shares of the
Preferred Stock are convertible into shares of the common stock, par value $1.00
per share of the Company (the "Common Stock"), upon the terms and subject to the
conditions and adjustments set forth in the Certificate of Designations, Powers,
Preferences and Rights (the "Certificate of Designations") relating thereto, at
the conversion price set forth on Schedule I hereto.]. The Company proposes to
sell to the underwriters named in Schedule II hereto (the "Underwriters"), for
whom you are acting as representatives (the "Representative"), the number of
shares of Preferred Stock, of the designation, with the terms and other
provisions specified in Schedule I hereto (the "Underwritten Shares" and,
individually, an "Underwritten Share"). The Underwritten Shares are to be
deposited by you or on your behalf against delivery of depositary receipts (the
"Depositary Receipts") to be issued by ______________, as Depositary (the
"Depositary"), under a deposit agreement, dated as of _____________, 1999 (the
"Deposit Agreement"), by and among the Company, the Depositary and holders from
time to time of the Depositary Receipts issued thereunder. The Depositary
Receipts will evidence depositary shares (the "Depositary Shares"), and each
Depositary Share will represent the fraction of a share of Preferred Stock
identified in Schedule I hereto. The number of Depositary Shares in respect of
Underwritten Shares to be purchased by each Underwriter is identified in
Schedule II hereto. 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 "Representative" shall each be deemed to refer to such firm
or firms.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The
Company represents, warrants and agrees that:
(a) [A] [R]egistration statement[s] (No[s]. 333- and 333- ),
including a prospectus, with respect to the Preferred Stock and the
Depositary Shares has [have] been
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prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "Act"), and the rules and
regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder and has [have] become
effective. As used in this Agreement, (i) "Registration Statement"
means [each] such registration statement, as amended and supplemented
to the date hereof, and "Registration Statements" means both such
registration statements, as amended and supplemented to the date
hereof]; (ii) "Preliminary Prospectus" means each prospectus (including
all documents incorporated therein by reference) included in that [the
most recently filed] Registration Statement, or amendments or
supplements thereof, before it became effective under the Act,
including any prospectus filed with the Commission pursuant to Rule
424(a) of the Rules and Regulations; (iii) "Basic Prospectus" means the
prospectus included in the [most recently filed] Registration
Statement; and (iv) "Prospectus" means the Basic Prospectus, together
with any prospectus amendment or supplement (including in each case all
documents incorporated therein by reference) specifically relating to
the Underwritten Shares and the Depositary Shares, as filed with the
Commission pursuant to paragraph (b) of Rule 424 of the Rules and
Regulations. The Commission has not issued any order preventing or
suspending the use of any Prospectus, and no proceedings for such
purposes have been instituted or are pending or, to the knowledge of
the Company, are contemplated by the Commission, and any request on the
part of the Commission for additional information has been complied
with.
(b) The Registration Statements and each Prospectus contain, and
(in the case of any amendment or supplement to any such document, or
any material incorporated by reference in any such document, filed with
the Commission after the date as of which this representation is being
made) will contain at all times during the period specified in
Paragraph 6(c) hereof, all statements which are required by the Act,
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and the rules and regulations of the Commission under such Acts; and
the Registration Statements and each Prospectus do not, and (in the
case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being
made) will not, at any time during the period specified in Paragraph
6(c) hereof, contain 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; PROVIDED that the Company
makes no representation or warranty as to information contained in or
omitted from any Registration Statement or any Prospectus in reliance
and based upon information furnished to the Company through the
Representative by or on behalf of any Underwriter.
(c) Neither the Company nor the Significant Subsidiary (as defined
in paragraph (h) hereof) is in violation of its charter or by-laws or
in default under any agreement, indenture or instrument, except for
such defaults that would not result in a material adverse change, or
any development involving a material adverse change, in or affecting
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the general affairs, management, financial position, stockholders'
equity or results of operations of the Company and the Significant
Subsidiary (a "Material Adverse Effect"), otherwise than as set forth
or contemplated in the Prospectus; and the execution, delivery and
performance of this Agreement and the Deposit Agreement and the
consummation of the transactions contemplated herein, and in the
Prospectus (including the issuance and sale of the Underwritten Shares
and the Depositary Shares and the use of the proceeds from the sale
thereof as described in the Prospectus under the caption "Use of
Proceeds") have been duly authorized by all necessary corporate action
and do not and will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or the
Significant Subsidiary pursuant to, any material agreement, indenture
or instrument to which the Company or the Significant Subsidiary is a
party or by which any of them is bound or to which any of their
respective properties or assets is subject, nor will such action result
in a material violation of the charter or by-laws of the Company or the
Significant Subsidiary or any order, rule or regulation of any court or
governmental agency having jurisdiction over the Company, the
Significant Subsidiary or their respective properties; and except as
required by the Act, the Exchange Act and applicable state securities
laws, no consent, authorization or order of, or filing or registration
with, any court or governmental agency is required for the execution,
delivery and performance of this Agreement, the Deposit Agreement or
the consummation of the transactions contemplated hereby and thereby.
(d) Except as described in or contemplated by the Registration
Statements and the Prospectus, neither the Company nor any of its
subsidiaries has sustained 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; and there has not been any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, except as described in
or contemplated by the Prospectus.
(e) KPMG Peat Marwick LLP ("KPMG"), whose report appears in the
Company's most recent Annual Report on Form 10-K which is incorporated
by reference in each Prospectus, are independent accountants as
required by the Act and the Rules and Regulations.
(f) On the Delivery Date (as defined in Paragraph 5 hereof), the
Underwritten Shares (i) will have been duly and validly authorized,
(ii) will be, when issued and delivered against payment therefor as
provided in this Agreement, validly issued, fully paid and
non-assessable and (iii) will conform to the description thereof
contained in the Prospectus.
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(g) The Depositary Shares representing the Underwritten Shares
have been duly and validly authorized by the Company; and, assuming the
due execution by the Depositary of the Deposit Agreement and the due
execution by the Depositary and, if required by the Deposit Agreement,
the registrar (the "Registrar") of the Depositary Receipts in
accordance with the terms of the Deposit Agreement, and upon the
deposit by or on behalf of the Underwriters of the Underwritten Shares
with the Depositary pursuant to the Deposit Agreement, the Depositary
Shares will represent legal and valid interests in the Underwritten
Shares and the Depositary Receipts will constitute valid evidence of
such interests in the Underwritten Shares and will be entitled to the
benefits of the Deposit Agreement.
[(h) All of the shares of Common Stock issuable upon conversion of
the Underwritten Shares have been duly and validly authorized and
reserved for issuance upon such conversion and, when issued and
delivered in accordance with the terms of the Certificate of
Designations, will be duly and validly issued, fully paid and
non-assessable; and the Common Stock issuable upon conversion of the
Underwritten Shares will conform to the description thereof contained
in the Prospectus.]
(i) Each of this Agreement and the Deposit Agreement has been
validly authorized, executed and delivered by the Company.
(j) The Company and the Significant Subsidiary have been duly
incorporated and are validly existing and remain subsisting
corporations under the laws of their respective jurisdictions of
incorporation, are duly qualified to do business and in good standing
as foreign corporations in each jurisdiction in which their respective
ownership of properties or the conduct of their respective businesses
require such qualification, except where the failure to so qualify
would not have a Material Adverse Effect, and have power and authority
necessary to own or hold their respective properties and to conduct the
businesses in which they are engaged and, with respect to the Company,
to enter into and perform its obligations under this Agreement; and
none of the subsidiaries of the Company (other than Polaroid
International B.V. (the "Significant Subsidiary")) is a "significant
subsidiary," as such term is defined in Rule 405 of the Rules and
Regulations.
(k) There is no material action, suit or proceeding before any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened, against or affecting
the Company or the Significant Subsidiary, which is required to be
disclosed in any Prospectus (other than as disclosed therein), or which
might reasonably be expected to have a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect
the properties or assets thereof or the consummation of the
transactions contemplated in this Agreement, the Deposit Agreement or
the performance by the Company of its obligations hereunder.
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(l) The financial statements filed as part of the Registration
Statements or included in any Preliminary Prospectus present, or (in
the case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being
made) will present at all times during the period specified in
Paragraph 6(c) hereof, fairly, the financial condition and results of
operations of the Company and its consolidated subsidiaries, at the
dates and for the periods indicated, and have been, and (in the case of
any amendment or supplement to any such document, or any material
incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being
made) will be at all times during the period specified in Paragraph
6(c) hereof, prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedules incorporated by reference in
any Prospectus present fairly in accordance with GAAP the information
required to be stated therein. The pro forma financial statements and
the related notes thereto incorporated by reference in the Registration
Statements and any Prospectus present fairly the information shown
therein, have been prepared in accordance with the Commission's rules
and guidelines with respect to pro forma financial statements and have
been properly compiled on the bases described therein, and the
assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein.
(m) The documents incorporated by reference into any Preliminary
Prospectus or Prospectus have been, and (in the case of any amendment
or supplement to any such document, or any material incorporated by
reference in any such document, filed with the Commission after the
date as of which this representation is being made) will be at all
times during the period specified in Paragraph 6(c) hereof, prepared by
the Company in conformity with the applicable requirements of the Act
and Rules and Regulations and the Exchange Act and the rules and
regulations of the Commission thereunder and such documents have been,
or (in the case of any amendment or supplement to any such document, or
any material incorporated by reference in any such document, filed with
the Commission after the date as of which this representation is being
made) will be at all times during the period specified in Paragraph
6(c) hereof, timely filed as required thereby.
(n) There are no contracts or other documents which are required
to be filed as exhibits to the Registration Statements by the Act or by
the Rules and Regulations, or which were required to be filed as
exhibits to any document incorporated by reference in any Prospectus by
the Exchange Act or the rules and regulations of the Commission
thereunder, which have not been filed as exhibits to the Registration
Statements or to such document or incorporated therein by reference as
permitted by the Rules and
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Regulations or the rules and regulations of the Commission under the
Exchange Act as required.
(o) The Company and the Significant Subsidiary have good and valid
title to all or substantially all of their respective properties.
(p) The Company is not, and upon the issuance and sale of the
Underwritten Shares as herein contemplated and the application of the
net proceeds therefrom as described in the Prospectus will not be, an
"investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of
1940, as amended (the "1940 Act").
2. PURCHASE OF THE UNDERWRITTEN SHARES BY THE UNDERWRITERS. Subject to
the terms and conditions and in reliance upon the representations and warranties
herein set forth, the Company agrees to sell to each Underwriter, severally and
not jointly, and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at the purchase price and on the other terms set forth in
Schedule I hereto, the number of Depositary Shares in respect of the
Underwritten Shares set forth opposite its name in Schedule II hereto.
3. CONDITIONS OF THE COMPANY'S OBLIGATIONS. The Company shall not be
obligated to deliver any Underwritten Shares except upon payment for all
Underwritten Shares to be purchased pursuant to this Agreement as hereinafter
provided.
4. DEFAULTING UNDERWRITERS. If any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Underwriters, if any, shall be obligated to purchase the
Underwritten Shares which the defaulting Underwriter agreed but failed to
purchase in the respective proportions which the number of shares of
Underwritten Shares set forth in Schedule II hereto to be purchased by each
remaining non-defaulting Underwriter set forth therein bears to the aggregate
number of shares of Underwritten Shares set forth therein to be purchased by all
the remaining non-defaulting Underwriters; PROVIDED that the remaining
non-defaulting Underwriters shall not be obligated to purchase any Underwritten
Shares if the aggregate number of shares of Underwritten Shares which the
defaulting Underwriter or Underwriters agreed but failed to purchase exceeds
9.09% of the total number of Underwritten Shares, and any remaining
non-defaulting Underwriter shall not be obligated to purchase more than 110% of
the number of shares of Underwritten Shares set forth in Schedule II hereto to
be purchased by it. If the foregoing maximums are exceeded, the remaining
non-defaulting Underwriters, or those other underwriters satisfactory to the
Representative who so agree, shall have the right, but shall not be obligated,
to purchase, in such proportion as may be agreed upon among them, all the
Underwritten Shares. If the remaining Underwriters or other underwriters
satisfactory to the Representative do not elect to purchase the Underwritten
Shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company, except
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that the Company will continue to be liable for the payment of expenses as set
forth in Paragraph 6(k) hereof.
Nothing contained in this Paragraph 6 shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused by
its default. If other underwriters are obligated or agree to purchase the
Underwritten Shares of a defaulting or withdrawing Underwriter, either the
Representative or the Company may postpone the Delivery Date for up to seven
full business days in order to effect any changes that in the opinion of counsel
for the Company or counsel for the Underwriters may be necessary in the
Registration Statements, any Prospectus or in any other document or arrangement.
5. DELIVERY AND PAYMENT FOR THE UNDERWRITTEN SHARES. Delivery of and
payment for the Underwritten Shares shall be made at such address, date and time
as may be specified in Schedule I hereto. This date and time are sometimes
referred to as the "Delivery Date." On the Delivery Date, the Company shall
deliver the Underwritten Shares to the Representative, for the account of each
Underwriter against payment to the Company by wire transfer of immediately
available funds to a bank account designated by the Company. Time shall be of
the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each Underwriter
hereunder. Upon delivery, the Underwritten Shares shall be in registered form
and in such denominations as may be set forth on Schedule I hereto.
The certificates representing the Underwritten Shares will be
delivered by the Representatives to, and deposited with, the Depositary against
delivery of Depositary Receipts representing Depositary Shares issued in respect
of such Underwritten Shares. Such Depositary Receipts shall be issued in such
denominations and registered in such names as the Representatives shall request
and shall be made available for inspection by the Representative in New York,
New York not later than 2:00 P.M., local time, on the business day prior to the
Delivery Date.
6. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees:
(a) To furnish promptly to the Representative and to counsel for
the Underwriters a conformed copy of each Registration Statement as
originally filed and each amendment or supplement thereto filed prior
to the date hereof or relating to or covering the Underwritten Shares
and the Depositary Shares, and a copy of each Prospectus filed with the
Commission, including all documents incorporated therein by reference
and all consents and exhibits filed therewith;
(b) To deliver promptly to the Representative such reasonable
number of the following documents as the Representative may request:
(i) conformed copies of the Registration Statements (excluding exhibits
other than the computation of the ratio of
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earnings to combined fixed charges including preference dividends and
this Agreement), (ii) each Prospectus and (iii) any documents
incorporated by reference in the Prospectus;
(c) During such period following the date hereof as, in the
opinion of counsel for the Underwriters, any Prospectus is required by
law to be delivered, to comply with the Act, the Exchange Act and the
rules and regulations under each thereof, so as to permit the
completion of the distribution of the Depositary Shares as contemplated
in this Agreement and in each Prospectus. If at any time when a
prospectus is required by the Act to be delivered in connection with
sales of the Depositary Shares, any event shall occur or condition
shall exist as a result of which it is necessary, in the reasonable
opinion of counsel for the Underwriters or for the Company, to amend
any Registration Statement or amend or supplement any Prospectus in
order that such Prospectus will not include any untrue statements of a
material fact or omit to state a material fact necessary in order to
make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or
if it shall be necessary, in the opinion of such counsel, at any such
time to amend any Registration Statement or amend or supplement any
Prospectus in order to comply with the requirements of the Act or the
Rules and Regulations, the Company will promptly prepare and file with
the Commission, subject to paragraph (d) below, such amendment or
supplement as may be necessary to correct such statement or omission or
to make any such Registration Statement or any such Prospectus comply
with such requirements, and the Company will furnish to the
Underwriters such number of copies of such amendment or supplement as
the Underwriters may reasonably request;
(d) Prior to filing with the Commission during the period referred
to in (c) above (i) any amendment or supplement to any Registration
Statement, (ii) any Prospectus or any amendment or supplement thereto
or (iii) any document incorporated by reference in any of the foregoing
or any amendment or supplement to such incorporated document, to
furnish a copy thereof to the Representative and to counsel for the
Underwriters and not to file any document that shall have been
disapproved by the Representative;
(e) To advise the Representative promptly (i) when any
post-effective amendment to any Registration Statement relating to or
covering the Underwritten Shares and the Depositary Shares becomes
effective or any supplement to any Prospectus shall have been filed,
(ii) of any comments from the Commission or any request or proposed
request by the Commission for an amendment or supplement to any
Registration Statement (insofar as the amendment or supplement relates
to or covers the Underwritten Shares), to any Prospectus, to any
document incorporated by reference in any of the foregoing or for any
additional information, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of any Registration Statement
or any order directed to any Prospectus or any document incorporated
therein by reference or the initiation or threat of any stop order
proceeding or of any challenge to the accuracy or adequacy of any
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document incorporated by reference in any Prospectus, (iv) of receipt
by the Company of any notification with respect to the suspension of
the qualification of the Underwritten Shares and the Depositary Shares
for sale in any jurisdiction or the initiation or threat of any
proceeding for that purpose and (v) of the happening of any event which
makes untrue any statement of a material fact made in any Registration
Statement (insofar as such Registration Statement relates to or covers
the Underwritten Shares and the Depositary Shares) or any Prospectus or
which requires the making of a change in any Registration Statement or
any Prospectus in order to make any material statement therein not
misleading;
(f) If, during the period referred to in (c) above, the Commission
shall issue a stop order suspending the effectiveness of any
Registration Statement, to make every reasonable effort to obtain the
lifting of that order at the earliest possible time;
(g) As soon as practicable, to make generally available to its
security holders and to deliver to the Representative an earnings
statement, conforming with the requirements of Section 11(a) of the
Act, covering a period of at least twelve months beginning after the
latest of (i) the most recent effective date of the registration
statement relating to part of the Underwritten Shares and the
Depositary Shares, (ii) the effective date of the most recent
post-effective amendment to the last Registration Statement that became
effective prior to the date of this 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 this Agreement;
(h) So long as any of the Depositary Shares are outstanding, to
furnish to the Representative copies of all reports and financial
statements furnished by the Company to each securities exchange on
which securities issued by the Company may be listed pursuant to
requirements of or agreements with such exchange or to the Commission
pursuant to the Exchange Act or any rule or regulation of the
Commission thereunder;
(i) To endeavor to qualify the Depositary Shares for offer and
sale under the securities laws of such jurisdictions as the
Representative may reasonably request and to maintain such
qualifications in effect for as long as may be required for the
distribution of the Depositary Shares; PROVIDED, HOWEVER, that the
Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject;
(j) To use its best efforts to obtain the listing of the
Underwritten Shares [, the Common Stock issuable upon conversion of the
Underwritten Shares] and the Depositary Shares on the securities
exchange, if any, set forth on Schedule I (the "Stock Exchange") on or
prior to the Delivery Date [, or prior to the initial issuance of such
Common Stock,]
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and to cause such listing to be continued so long as any amount of the
Underwritten Shares [, the Common Stock, issued upon conversion of the
Underwritten Shares] or Depositary Shares remain outstanding; to
furnish from time to time any and all documents, instruments,
information and undertakings that may be necessary in order to effect
such listing; and to maintain the same until none of the Underwritten
Shares [, the Common Stock issued upon conversion of the Underwritten
Shares] or Depositary Shares are outstanding; PROVIDED that if the
Company can no longer reasonably maintain such listing, the Company
shall use its best efforts to obtain and maintain the quotation for, or
listing of, the Underwritten Shares [, the Common Stock issued upon
conversion of the Underwritten Shares] and the Depositary Shares on
such other securities exchange or exchanges as the Company may, with
the approval of the Representative, determine;
(k) To pay the costs incident to the authorization, issuance, sale
and delivery of the Underwritten Shares and any taxes payable in that
connection; the costs incident to the preparation, printing and filing
under the Act of the Registration Statements and any amendments,
supplements and exhibits thereto; the costs incident to the
preparation, printing and filing of any document and any amendments and
exhibits thereto required to be filed by the Company under the Exchange
Act; the costs of distributing the Registration Statements as
originally filed and each amendment and post-effective amendment
thereof (including exhibits), any Preliminary Prospectus, each
Prospectus and any documents incorporated by reference in any of the
foregoing documents; the costs of printing this Agreement; the fees and
disbursements of the Company's counsel, accountants and other advisors;
[the fees of the Transfer Agent and Registrar, if any, relating to the
Common Stock issuable upon conversion of the Underwritten Shares;] the
fees of the Registrar, if required under the Deposit Agreement; all
fees of the Depositary, for all taxes in connection with the deposit of
the Underwritten Shares with the Depositary and the issuance of the
Depositary Receipts as provided in Section 6 hereof; the costs of any
filings with the National Association of Securities Dealers, Inc.; fees
paid to rating agencies in connection with the rating of the
Underwritten Shares or the Depositary Shares; the fees and expenses of
qualifying the Underwritten Shares or the Depositary Shares under the
securities laws of the several jurisdictions as provided in this
paragraph, of preparing and printing a Blue Sky Memorandum and of
advising on the legality of the Underwritten Shares [and the Common
Stock issuable upon conversion of the Underwritten Shares] for
investment (including fees of counsel to the Underwriters); the cost of
listing the Underwritten Shares [, the Common Stock issuable upon
conversion of the Underwritten Shares] or the Depositary Shares on the
Stock Exchange; and all other costs and expenses incident to the
performance of the Company's obligations under this Agreement; PROVIDED
that, except as provided in this paragraph and in Paragraph 10 hereof,
the Underwriters shall pay their own costs and expenses, including the
fees and expenses of their counsel, any transfer taxes on the
Underwritten Shares or the Depositary Shares which they may sell and
the expenses of advertising any offering of the Underwritten Shares
made by the Underwriters;
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(l) Until the termination of the offering of the Underwritten
Shares, to timely file all documents, and any amendments to previously
filed documents, required to be filed by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act; and
(m) During the period beginning on the date hereof and continuing
to _______, without the consent of the Representative, not to offer,
sell, contract to sell or otherwise dispose of any shares of Preferred
Stock of the Company, other than the Underwritten Shares to the
Underwriters.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company shall indemnify
and hold harmless each Underwriter, its officers and employees and each person,
if any, who controls any Underwriter within the meaning of the Act, from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of Depositary Shares), to
which that Underwriter, officer, employee or controlling person may become
subject, under the Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained (A) in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or (B) in any blue sky application or other document
prepared or executed by the Company (or based upon any written information
furnished by the Company) specifically for the purpose of qualifying any or all
of the Underwritten Shares [, the Common Stock issuable upon conversion of the
Underwritten Shares] or Depositary Shares under the securities laws of any state
or other jurisdiction (any such application, document or information being
hereinafter called a "Blue Sky Application"), or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application any material fact required to be stated therein or necessary to make
the statements therein not misleading, and shall reimburse each Underwriter and
each such officer, employee and controlling person promptly upon demand for any
legal or other expenses reasonably incurred by that Underwriter, officer,
employee or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred; PROVIDED, HOWEVER, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any such
amendment or supplement, or in any Blue Sky Application in reliance upon and in
conformity with the written information furnished to the Company through the
Representative by or on behalf of any Underwriter specifically for inclusion
therein and described in Paragraph 7(e); and PROVIDED FURTHER that as to any
Preliminary Prospectus this indemnity agreement shall not inure to the benefit
of any Underwriter, its officers or employees or any person controlling that
Underwriter on account of any loss, claim, damage, liability or action arising
from the sale of Depositary Shares to any person by that Underwriter if that
Underwriter failed to send or give a copy of the Prospectus, as the same may be
amended or
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supplemented, to that person within the time required by the Act, and the untrue
statement or alleged untrue statement of any material fact or omission or
alleged omission to state a material fact in such Preliminary Prospectus was
corrected in the Prospectus, unless such failure resulted from non-compliance by
the Company with Paragraph 6(c). For purposes of the last proviso to the
immediately preceding sentence, the term "Prospectus" shall not be deemed to
include the documents incorporated therein by reference, and no Underwriter
shall be obligated to send or give any supplement or amendment to any document
incorporated by reference in any Preliminary Prospectus or the Prospectus to any
person other than a person to whom such Underwriter had delivered such
incorporated document or documents in response to a written request therefor.
The foregoing indemnity agreement is in addition to any liability which the
Company may otherwise have to any Underwriter or to any officer, employee or
controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, its officers and employees, each of its directors and
each person, if any, who controls the Company within the meaning of the Act,
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Company or any such director, officer or
controlling person may become subject, under the Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained (A) in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any amendment or supplement thereto, or (B) in any Blue Sky
Application or (ii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact required to
be stated therein or necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with the written information furnished to the Company through the
Representative by or on behalf of that Underwriter specifically for inclusion
therein and described in Paragraph 7(e), and shall reimburse the Company and any
such director, officer or controlling person for any legal or other expenses
reasonably incurred by the Company or any such director, officer or controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any liability
which any Underwriter may otherwise have to the Company or any such director,
officer or controlling person.
(c) Promptly after receipt by an indemnified party under this Paragraph
7 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Paragraph 7, notify the indemnifying party in
writing of the claim or the commencement of that action; PROVIDED, HOWEVER, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Paragraph 7 except to the extent it has
been materially prejudiced
13
by such failure and, PROVIDED FURTHER, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Paragraph 7. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Paragraph 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; PROVIDED, HOWEVER, that
any indemnified party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) such indemnified party shall have been advised by such counsel
that there may be one or more legal defenses available to it which are different
from or additional to those available to the indemnifying party and in the
reasonable judgment of such counsel it is advisable for such indemnified party
to employ separate counsel or (iii) the indemnifying party has failed to assume
the defense of such action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys at any time for all such indemnified
parties, which firm shall be designated in writing by the Representative, if the
indemnified parties under this Paragraph 7 consist of any Underwriter or any of
their respective officers, employees or controlling persons, or by the Company,
if the indemnified parties under this Paragraph consist of the Company or any of
the Company's directors, officers, employees or controlling persons. No
indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss of
liability by reason of such settlement or judgment.
14
(d) If the indemnification provided for in this Paragraph 7 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Paragraph 7(a) or 7(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be 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 Depositary Shares 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 with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action 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 with
respect to such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Depositary Shares purchased under
this Agreement (before deducting expenses) received by the Company, on the one
hand, and the total underwriting discounts and commissions received by the
Underwriters with respect to the shares of the Depositary Shares purchased under
this Agreement, on the other hand, bear to the total gross proceeds from the
offering of the Depositary Shares under this Agreement, 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 whether the untrue or alleged untrue statement of
a material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Underwriters, the intent of the
parties and their relative 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 contributions pursuant to this
Paragraph 7(d) were to be 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 into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Paragraph 7(d) shall be deemed to include, for
purposes of this Paragraph 7(d), 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 Paragraph 7(d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Depositary Shares underwritten by it and
distributed to the public was offered to the public exceeds the amount of any
damages which such Underwriter has otherwise paid or become liable to pay by
reason of any 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 to contribute as provided in this Paragraph 7(d) are several in
proportion to their respective underwriting obligations and not joint.
15
(e) The Underwriters severally confirm that the statements with respect
to the public offering of the Depositary Shares set forth on the cover page of,
and under the caption "Underwriting" in, the Prospectus are correct and
constitute the only information furnished in writing to the Company by or on
behalf of the Underwriters specifically for inclusion in the Registration
Statement and the Prospectus.
8. TERMINATION. (a) The obligations of the Underwriters hereunder may
be terminated by the Representative by notice given to and received by the
Company prior to delivery of and payment for the Underwritten Shares if, prior
to that time, any of the events described in Paragraphs 9(k), 9(l) or 9(m)
hereof shall have occurred or if the Underwriters shall decline to purchase the
Underwritten Shares for any reason permitted under this Agreement.
(b) If this Agreement is terminated pursuant to this Paragraph 8, such
termination shall be without liability of any party to any other party except as
provided in Paragraph 10 hereof, and PROVIDED further that Paragraphs 1 and 7
shall survive such termination and remain in full force and effect.
9. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS . The respective
obligations of the Underwriters under the Agreement with respect to the
Underwritten Shares are subject to the accuracy, on the date hereof and on the
Delivery Date, of the representations and warranties of the Company contained
herein, to performance by the Company of its obligations hereunder, and to each
of the following additional terms and conditions applicable to the Underwritten
Shares.
(a) At or before the Delivery Date, no stop order suspending the
effectiveness of any Registration Statement nor any order directed to
any document incorporated by reference in any Prospectus shall have
been issued and prior to that time no stop order proceeding shall have
been initiated or threatened by the Commission and no challenge shall
have been made to the accuracy or adequacy of any document incorporated
by reference in any Prospectus; any request of the Commission for
inclusion of additional information in any Registration Statement or
any Prospectus or otherwise shall have been complied with; and after
the date hereof the Company shall not have filed with the Commission
any amendment or supplement to any Registration Statement or any
Prospectus (or any document incorporated by reference therein) that
shall have been disapproved by the Representative.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to the Delivery Date that any Registration
Statement or any Prospectus contains an untrue statement of a fact
which, in the opinion of counsel for the Underwriters, is material or
omits to state a fact which, in the opinion of such counsel, is
material and is required to be stated therein or is necessary to make
the statements therein not misleading.
16
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Deposit
Agreement, the Preferred Stock, the Depositary Shares, the Depositary
Receipts and the Underwritten Shares and the form of the Registration
Statements, each Prospectus (other than financial statements and other
financial data) and all other legal matters relating to this Agreement
and the transactions contemplated hereby shall be satisfactory in all
respects to counsel for the Underwriters, and the Company shall have
furnished to such counsel all documents and information that such
counsel may reasonably request to enable it to pass upon such matters.
(d) [ ] General Counsel of the Company, shall have furnished to
the Representative his opinion addressed to the Underwriters and dated
the Delivery Date to the effect that:
(i) The Company has been duly incorporated and is validly
existing and remains a subsisting corporation under the laws of
the State of Delaware;
(ii) The Company is duly qualified to do business and is in
good standing as a foreign corporation in all jurisdictions in
which its ownership of property or the conduct of its business
requires such qualification (except where the failure to so
qualify would not have a Material Adverse Effect), and has all
power and authority necessary to own its properties and conduct
the business in which it is engaged as described in the
Prospectus;
(iii) No order issued by the Commission directed to any
document incorporated by reference in any Prospectus has been
issued and, to the knowledge of such counsel, no challenge has
been made by the Commission to the accuracy or adequacy of any
such document;
(iv) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital
stock of the Company, (including the Underwritten Shares being
delivered on the Delivery Date) have been duly and validly
authorized and issued, are fully paid and non-assessable;
(v) There are no preemptive or other rights to subscribe
for or to purchase, nor any restriction upon the voting or
transfer of, any Shares[, or the Common Stock issuable upon
conversion of the Underwritten Shares,] pursuant to the
Certificate of Designations relating to the Preferred Stock, the
Company's charter or by-laws or any agreement or other instrument
known to such counsel;
(vi) Such counsel does not know of any litigation or any
governmental proceeding pending or threatened against the Company
which would affect the subject matter of this Agreement or the
Deposit Agreement or is required to be disclosed in any
17
Prospectus (including the documents incorporated by reference
therein) which is not disclosed and correctly summarized therein;
and
(vii) The execution, delivery and performance of this
Agreement and the Deposit Agreement and compliance by the Company
with the provisions of the Underwritten Shares, the Certificate of
Designations and the Deposit Agreement [and the issuance and
delivery of the Common Stock issuable upon conversion of the
Underwritten Shares] will not constitute a breach of, or result in
the creation or imposition of any lien, charge or encumbrance upon
any of the assets of the Company pursuant to the terms of, or
constitute a default under, any agreement, indenture or instrument
known to such counsel, or result in a violation of the charter or
by-laws of the Company or, to the best of such counsel's
knowledge, any order, rule or regulation of any court or
governmental agency having jurisdiction over the Company or its
property.
In giving such opinion, such counsel need not express any opinion
regarding any order, consent or other authorization or approval which
may be legally required pursuant to any state securities law.
In rendering such opinion, such counsel may: (i) state that his
opinion is limited to matters governed by the federal laws of the
United States of America, the laws of the District of Columbia and the
General Corporation Law of the State of Delaware and that such counsel
is not admitted in the State of Delaware; and (ii) rely (to the extent
such counsel deems proper and specifies in his opinion), as to matters
involving the application of the laws of other jurisdictions upon the
opinion of other counsel of good standing, PROVIDED that such other
counsel is satisfactory to counsel for the Underwriters and furnishes a
copy of its opinion to the Representative.
(e) Boekel de Neree, special Netherlands counsel to the
Significant Subsidiary, shall have furnished to the Representative its
opinion addressed to the Underwriters and dated the Delivery Date, to
the effect that the Significant Subsidiary has been duly incorporated
and is validly existing as a private limited liability company under
the laws of The Netherlands and has the corporate power and authority
to carry on the business described in the objects clause of its
Articles of Association.
(f) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Company, shall
have furnished to the Representative its opinion addressed to the
Underwriters and dated the Delivery Date, to the effect that:
(i) The Company has been duly incorporated and is
validly existing and in good standing as a corporation under the
laws of the State of Delaware;
18
(ii) The Deposit Agreement has been duly authorized,
executed and delivered by the Company and, assuming (A) that the
Deposit Agreement is a valid and binding agreement of the
Depositary and (B) if required by the Deposit Agreement, the
Registrar, constitutes a valid and legally binding instrument of
the Company enforceable against the Company in accordance with its
terms;
(iii) The Underwritten Shares representing the
Underwritten Shares delivered on such Delivery Date have been duly
and validly authorized by the Company; and, assuming the due
execution by the Depositary of the Deposit Agreement, the due
execution by the Depositary and, if required by the Deposit
Agreement, the Registrar of the Depositary Receipts in accordance
with the terms of the Deposit Agreement and (B) upon the deposit
by or on behalf of the Underwriters of the Shares with the
Depositary pursuant to the Deposit Agreement, then such Depositary
Shares will represent legal and valid interests in the
Underwritten Shares delivered on such Delivery Date and the
Depositary Receipts will constitute valid evidence of such
interests in such Underwritten Shares and will be entitled to the
benefits of the Deposit Agreement;
[(iv) The Common Stock issuable on the conversion of the
Underwritten Shares has been duly authorized and reserved for
issuance upon such conversion and, when issued and delivered in
accordance with the terms of the charter will be duly and validly
issued, fully paid and non-assessable;]
(v) The statements made in each Prospectus under the
caption "Description of Offered Preferred Stock--Depositary
Shares" [and "Description of Capital Stock--Common Stock" (or,
with respect to each, a comparable caption), insofar as they
purport to constitute summaries of the documents referred to
therein, constitute accurate summaries of the terms of such
documents in all material respects;
(vi) Each Registration Statement is effective under the
Act and, to the knowledge of such counsel, no stop order
suspending its effectiveness has been issued and no proceeding for
that purpose is pending or threatened by the Commission;
(vii) Each of this Agreement and the Deposit Agreement
has been duly authorized, executed and delivered by the Company;
and
(viii) The Company is not an "investment company" or an
entity "controlled" by an "investment company," as such terms are
defined in the 1940 Act.
Such counsel may state that the opinions set forth in paragraphs (ii)
and (iii) above are subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general
19
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing.
In rendering such opinion, such counsel may state that its opinion is
limited to matters governed by the federal laws of the United States of America,
the laws of the State of New York and the General Corporation Law of the State
of Delaware and that such counsel is not admitted in the State of Delaware.
Such counsel shall also have furnished to the Representative a written
statement, addressed to the Underwriters and dated the Delivery Date, in form
and substance satisfactory to the Representative, to the effect that (1) such
counsel has acted as counsel to the Company in connection with the preparation
of the Registration Statements and the offer and sale of the Underwritten Shares
and the Depositary Shares (although the Company is also represented by its
General Counsel and, with respect to certain other matters, by other outside
counsel); (2) in the course of the preparation by the Company of the
Registration Statements and the Prospectus, such counsel participated in
conferences with certain officers and employees of the Company, with
representatives of KPMG and with counsel to the Company; (3) prior to the
Company's filing with the Commission documents under the Exchange Act, such
counsel reviewed such documents; and (4) based on (a) such counsel's examination
of the Registration Statements, the Prospectus and the documents filed by the
Company under the Exchange Act, (b) such counsel's investigation made in
connection with the preparation of Registration Statements and the Prospectus
(excluding the documents filed by the Company under the Exchange Act) and (c)
such counsel's participation in the conferences referred to in clause (2) of
this paragraph above, (i) that such counsel is of the opinion that the
Registration Statements, as of their respective effective dates, and each
Prospectus, as of its issue date, complied as to form in all material respects
with the requirements of the Act and the Rules and Regulations, and each
document incorporated by reference in each Prospectus as filed under the
Exchange Act complied as to form when filed in all material respects with the
requirements of the Exchange Act and the applicable rules and regulations of the
Commission thereunder, except that in each case no opinion need be expressed as
to the financial statements and other financial data contained or incorporated
by reference therein, and (ii) such counsel has no reason to believe that (I)
either Registration Statement, on the dates they became effective (or, with
respect to such Registration Statements, if the Company has filed an Annual
Report on Form 10-K since their effective dates, the date of the Company's most
recent Annual Report on Form 10-K), contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading or that the
Prospectus, as of its issue date and as of the Delivery Date, contains any
untrue statement of a material fact or omits to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading or (II)
any document incorporated by reference in the Prospectus when they were filed
with the Commission contained any untrue statement of a material fact or omitted
to state any material fact necessary in order to make the statements therein, in
light of the circumstances under which
20
they were made, not misleading, except that with respect to each of clauses (I)
and (II) above, such counsel may state that it expresses no belief with respect
to the financial statements or other financial data contained in or incorporated
by reference in the Registration Statements, the Prospectus or documents filed
by the Company under the Exchange Act. The foregoing opinion and statement may
be qualified by a statement to the effect that such counsel has not
independently verified the accuracy, completeness or fairness of the statements
made or included in the Registration Statements, the Prospectus or the documents
filed by the Company under the Exchange Act and takes no responsibility
therefor, except as and to the extent set forth in paragraph (v) above.
(g) The Company shall have furnished to the Representative a
certificate, dated the Delivery Date, of its Chairman of the Board, its
President or a Vice President and its chief financial officer stating
that:
(i) The representations, warranties and agreements of
the Company in Paragraph 1 are true and correct as of the Delivery
Date; the Company has complied with all its agreements contained
herein; and the conditions set forth in Paragraph 9(a) have been
fulfilled;
(ii) (A) Except as described in or contemplated by the
Registration Statements and the Prospectus, neither the Company
nor any of its subsidiaries has sustained, any loss or
interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, or
(B) there has not been any change, or any development involving a
prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as
described in or contemplated by the Prospectus; and
(iii) They have carefully examined the Registration
Statements and the Prospectus and, in their opinion (A) the
Registration Statements, as of their respective effective dates,
and the Prospectus, as of its issue date, did not include any
untrue statement of a material fact and did not omit to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading, and (B) since the effective
date of Registration Statement (No. 333- ), no event has
occurred which should have been set forth in a supplement or
amendment to either of the Registration Statements or the
Prospectus.
(h) (i) Neither the Company nor any of its subsidiaries shall have
sustained, except as described in or contemplated by the Registration
Statements and the Prospectus, any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental
21
action, order or decree, or (ii) there shall not have been any change,
or any development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the 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 the
judgment of the Representative, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Depositary Shares on the terms and in the manner
contemplated in the Prospectus.
(i) The Company shall have furnished to the Representative (i) a
letter of KPMG, addressed to the Underwriters and dated the date hereof
of the type described in the American Institute of Certified Public
Accountants' Statement on Auditing Standards No. 72 and covering such
specified financial statement items as counsel for the Underwriters may
reasonably have requested and (ii) a letter of KPMG, addressed to the
Underwriters and dated the Delivery Date, stating, as of the date of
such letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than five
days prior to the date of such letter), the conclusions and findings of
such firm with respect to the financial information and other matters
covered by its letter referred to in subclause (i) above, confirming in
all material respects the conclusions and findings set forth in such
prior letter.
(j) The Depositary Shares shall have been accepted for listing on
the Stock Exchange (if any), subject to official notice of issuance.
(k) (i) Neither the Company nor the Significant Subsidiary shall
have sustained, except as described in or contemplated by the
Registration Statements and the Prospectus, any loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree, or (ii) there shall not have
been any change, or any development involving a prospective change, in
or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and the
Significant Subsidiary, otherwise than as described in or contemplated
by the Prospectus, the effect of which, in any such case described in
clause (i) or (ii), is, in the judgment of the Representative, so
material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Depositary
Shares on the terms and in the manner contemplated in the Prospectus.
(l) Subsequent to the execution and delivery of this Agreement,
(i) no downgrading shall have occurred in the rating accorded the
Company's preferred stock by any "nationally recognized statistical
rating organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) of the Rules and Regulations and (ii) no
such
22
organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating
of any of the Company's preferred stock.
(m) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or the American
Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter
market, shall have been suspended or minimum prices shall have been
established on any such exchange or such market by the Commission, by
such exchange or by any other regulatory body or governmental authority
having jurisdiction, (ii) a banking moratorium shall have been declared
by federal or state authorities, (iii) the United States shall have
become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States or (iv)
there shall have occurred such a material adverse change in general
economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of a majority in interest
of the several Underwriters, impracticable or inadvisable to proceed
with the public offering or delivery of the Depositary Shares on the
terms and in the manner contemplated in the Prospectus.
All opinions, letters, evidence and certificates mentioned above
or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance
satisfactory to counsel for the Underwriters.
10. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the Company shall fail
to tender the Underwritten Shares for delivery to the Underwriters for any
reason permitted under this Agreement, or if the Underwriters shall decline to
purchase the Underwritten Shares for any reason permitted under this Agreement
(other than pursuant to Paragraph 4 hereof), the Company shall reimburse the
Underwriters for reasonable fees and expenses of their counsel and for such
other out-of-pocket expenses as shall have been incurred by them in connection
with this Agreement and the proposed purchase of Underwritten Shares and the
solicitation of any purchases of the Underwritten Shares, and upon demand the
Company shall pay the full amount thereof to the Representative. If this
Agreement is terminated pursuant to Paragraph 4 hereof by reason of the default
of one or more Underwriters, the Company shall not be obligated to reimburse any
defaulting Underwriter on account of those expenses.
11. NOTICES, ETC. The Company shall be entitled to act and rely upon
any request, consent, notice or agreement by, or on behalf of, the
Representative. Any notice by the Company to the Underwriters shall be
sufficient if given in writing or by telegraph addressed to the Representative
at its address set forth in Schedule I hereto, and any notice by the
Underwriters to the Company shall be sufficient if given in writing or by
facsimile addressed to
23
the Company at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Facsimile
Number: (▇▇▇) ▇▇▇-▇▇▇▇), Attention of the Treasurer.
12. PERSONS ENTITLED TO THE BENEFIT OF THIS AGREEMENT. This Agreement
shall be binding upon the Underwriters, the Company, and their respective
successors. This Agreement and the terms and provisions hereof are for the sole
benefit of only those persons, except that (a) the representations, warranties,
indemnities and agreements of the Company contained in this Agreement shall also
be deemed to be for the benefit of the person or persons, if any, who control
any Underwriter within the meaning of Section 15 of the Act, and (b) the
indemnity agreement of the Underwriters contained in Paragraph 7 hereof shall be
deemed to be for the benefit of directors of the Company, officers of the
Company who have signed any Registration Statement and any person controlling
the Company. Nothing in this Agreement is intended or shall be construed to give
any person, other than the persons referred to in this Paragraph, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
13. CERTAIN DEFINITIONS. For purposes of this Agreement, (a) "business
day" means any day on which the New York Stock Exchange, Inc. is open for
trading and (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules
and Regulations.
14. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
16. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[THE REST OF THIS PAGE IS LEFT BLANK INTENTIONALLY; THE SIGNATURE PAGE FOLLOWS.]
24
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement shall represent a binding agreement among the Company and the
several Underwriters.
Very truly yours,
POLAROID CORPORATION
By
-----------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed
and accepted as of the date first above
written.
[ ]
By
---------------------------------------
Name:
Title:
For itself and as Representative of the other
Underwriters named in Schedule II to the foregoing
Agreement.
SCHEDULE I
Underwriting Agreement dated , 1999.
Registration Statement No.'s 333- and 333- .
Representatives and Addresses:
Certificate of Designations, Powers, Preferences and Rights:
Title:
Depositary Shares each representing ________ [INSERT FRACTION] of a share of
__________ [INSERT DESIGNATION] Preferred Stock
Number of Underwritten Shares:
Price per share:
Price to public:
Time of payment of dividends:
Sinking fund provisions:
[Conversion Price of Common Stock:]
Redemption provisions:
Repayment provisions:
Stock Exchange Listing:
Delivery Date, Time and Location:
SCHEDULE II
NUMBER OF DEPOSITARY
SHARES IN RESPECT OF
UNDERWRITTEN
NAME OF UNDERWRITER SHARES
--------------------------------------------------------------------------
.................................................... $
....................................................
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Total $
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