POLAROID CORPORATION
$275,000,000 AGGREGATE PRINCIPAL AMOUNT 11 1/2% NOTES DUE 2006
UNDERWRITING AGREEMENT
New York, New York
February 11, 1999
▇▇▇▇▇▇ Brothers Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
ABN AMRO Incorporated
Deutsche Bank Securities Inc.
PNC Capital Markets, Inc.
c/▇ ▇▇▇▇▇▇ Brothers Inc.
3 World Financial Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Polaroid Corporation, a Delaware corporation (the "Company"), may issue
and sell from time to time series of its debt securities registered under the
registration statement referred to in Paragraph 1(a) hereof. The Company
proposes to sell to the underwriters named in Schedule I hereto (the
"Underwriters") $275,000,000 in aggregate principal amount of its 11 1/2% Notes
due 2006 (collectively, the "Securities" and, individually, a "Security").
1. Representations, Warranties and Agreements of the Company. The
Company represents, warrants and agrees that:
(a) Registration statements (No. 333-0791 and No. 333-67647),
including a prospectus, with respect to the Securities have been
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 have become effective.
Copies of such registration statements have been delivered by the
Company to you as the Underwriters. As used in this Agreement, (i)
"Registration Statement" means each such registration statement, as
amended and supplemented to the date hereof; (ii) "Second Registration
Statement" means the Company's registration statement (No. 333-67647) as
amended and supplemented to the date hereof; (iii) "Preliminary
Prospectus" means each prospectus (including all documents incorporated
therein by reference or deemed to be incorporated by reference therein)
included in the Second 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; (iv) "Basic Prospectus" means the prospectus
included in the Second Registration Statement; and (v) "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
Securities, 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 the 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"), the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
rules and regulations of the Commission under such Acts; the
Supplemental Indenture, dated as of February 17, 1999, (the
"Supplemental Indenture") by and between the Company and State Street
Bank and Trust Company, as trustee (the "Trustee") to the indenture,
dated as of January 7, 1997, by and between the Company and the Trustee
(the "Base Indenture" and together with the Supplemental Indenture, the
"Indenture"), pursuant to which the Securities will be issued conforms,
and with any amendments and supplements thereto will conform, with the
requirements of the Trust Indenture Act and the rules and regulations of
the Commission thereunder; and the Registration Statement and the
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 by or on behalf of any Underwriter, or as to any statements in
or omissions from the Statement of Eligibility of the Trustee under the
Indenture.
(c) Neither the Company nor the Significant Subsidiary (as
defined in paragraph (h) hereof) is in violation of its corporate
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 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, the Indenture and the Securities, and
the consummation of the transactions contemplated herein, and in the
Prospectus (including the issuance and sale of the Securities 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
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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 Trust Indenture 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 Indenture and the Securities or the consummation of the
transactions contemplated hereby and thereby.
(d) Except as described in or contemplated by the Registration
Statement and the Prospectus, neither the Company nor any of its
subsidiaries has 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; and, since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus,
there has not been any change in the capital stock or long-term debt of
the Company or any of its subsidiaries or any material adverse change,
or any development involving a prospective material adverse change, in
or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, except as described in or contemplated by the Prospectus.
(e) KPMG Peat Marwick LLP, who have certified certain financial
statements of the Company included and incorporated by reference in the
Prospectus, whose report appears in the Prospectus and in the Company's
most recent Annual Report on Form 10-K which is incorporated by
reference in the Prospectus and who have delivered the initial letter
referred to in Paragraph 9(i) hereof, are independent accountants as
required by the Act and the Rules and Regulations.
(f) On the Delivery Date (as defined in Paragraph 5 hereof) (i)
the Indenture will have been validly authorized, executed and delivered
by the Company and duly qualified under the Trust Indenture Act and will
constitute the legally binding obligation of the Company, (ii) the
Securities will have been validly authorized and executed and, upon
payment therefor as provided in this Agreement, will be validly issued
and outstanding, and will constitute legally binding obligations of the
Company entitled to the benefits of the Indenture, and (iii) the
Securities and the Indenture will conform to the descriptions thereof
contained in the Prospectus.
(g) This Agreement has been validly authorized, executed and
delivered by the Company.
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(h) 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.
(i) 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 the 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 or the performance by the Company of its
obligations hereunder.
(j) The financial statements filed as part of the Registration
Statement or included or incorporated by reference in the 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.
(k) The documents incorporated by reference into the 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
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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.
(l) There are no contracts or other documents which are required
to be filed as exhibits to the Registration Statement 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 the Prospectus by
the Exchange Act or the rules and regulations of the Commission
thereunder, which have not been filed as exhibits to the Registration
Statement or to such document or incorporated therein by reference as
permitted by the Rules and Regulations or the rules and regulations of
the Commission under the Exchange Act as required.
(m) The Company and each of its subsidiaries have good and
marketable title in fee simple to all real property owned by them that
are material to the business and operations of the Company and its
subsidiaries, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus or such as do not
materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by
the Company and its subsidiaries; and all real property and buildings
held under lease by the Company and its subsidiaries that are material
to the business and operations of 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.
(n) No relationship, direct or indirect, exists between or among
the Company on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company on the other hand, which is
required to be described in the Prospectus which is not so described.
(o) No labor disturbance by the employees of the Company exists
or, to the knowledge of the Company, is imminent which might be expected
to have a Material Adverse Effect.
(p) The Company is in compliance in all material respects with
all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and
published interpretations thereunder ("ERISA"); no "reportable event"
(as defined in ERISA) has occurred with respect to any "pension plan"
(as defined in ERISA) for which the Company would have any liability;
the Company has not incurred and does not expect to incur liability
under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "Code"); and each "pension
plan" for which the Company would have any liability that is intended to
be qualified under Section 401(a) of the Code is so qualified in all
material respects and nothing has occurred, whether by action or by
failure to act, which would cause the loss of such qualification.
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(q) The Company has filed all federal, state and local income and
franchise tax returns required to be filed through the date hereof and
has paid all taxes due thereon, and no tax deficiency has been
determined adversely to the Company or any of its subsidiaries which has
had (nor does the Company have any knowledge of any tax deficiency
which, if determined adversely to the Company or any of its
subsidiaries), might have a Material Adverse Effect, except for such tax
delinquencies that are the subject of a bona fide dispute by the Company
and for which the Company has established appropriate reserves under
GAAP.
(r) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully paid
and non-assessable and conform to the description thereof contained in
the Prospectus.
(s) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be
disclosed in the Prospectus, the Company has not (i) issued or granted
any securities, (ii) incurred any liability or obligation, direct or
contingent, other than liabilities and obligations which were incurred
in the ordinary course of business, (iii) entered into any transaction
not in the ordinary course of business or (iv) declared or paid any
dividend on its capital stock (other than the dividend declared by the
Board of Directors on January 26, 1999).
(t) The Company (i) makes and keeps accurate books and records
and (ii) maintains internal accounting controls which provide reasonable
assurance that (A) transactions are executed in accordance with
management's authorization, (B) transactions are recorded as necessary
to permit preparation of its financial statements and to maintain
accountability for its assets, (C) access to its assets is permitted
only in accordance with management's authorization and (D) the reported
accountability for its assets is compared with existing assets at
reasonable intervals.
(u) Neither the Company nor any of its subsidiaries, nor any
director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any of its subsidiaries, has used any
corporate funds for any unlawful contribution, gift, entertainment or
other unlawful expense relating to political activity; made any direct
or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; violated or is in violation
of any provision of the Foreign Corrupt Practices Act of 1977; or made
any bribe, rebate, payoff, influence payment, kickback or other unlawful
payment.
(v) Except as disclosed in the Prospectus, there has been no
storage, disposal, generation, manufacture, refinement, transportation,
handling or treatment of toxic wastes, medical wastes, hazardous wastes
or hazardous substances by the Company or any of its subsidiaries (or,
to the knowledge of the Company, any of their predecessors in interest)
at, upon or from any of the property now or previously owned or leased
by the Company or its subsidiaries in violation of any applicable law,
ordinance, rule, regulation,
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order, judgment, decree or permit or which would require remedial action
under any applicable law, ordinance, rule, regulation, order, judgment,
decree or permit, except for any violation or remedial action which
would not have, or could not be reasonably likely to have, singularly or
in the aggregate with all such violations and remedial actions, a
Material Adverse Effect; except as disclosed in the Prospectus, there
has been no material spill, discharge, leak, emission, injection,
escape, dumping or release of any kind onto such property or into the
environment surrounding such property of any toxic wastes, medical
wastes, solid wastes, hazardous wastes or hazardous substances due to or
caused by the Company or any of its subsidiaries or with respect to
which the Company or any of its subsidiaries have knowledge, except for
any such spill, discharge, leak, emission, injection, escape, dumping or
release which would not have or would not be reasonably likely to have,
singularly or in the aggregate with all such spills, discharges, leaks,
emissions, injections, escapes, dumpings and releases, a Material
Adverse Effect; and the terms "hazardous wastes," "toxic wastes,"
"hazardous substances" and "medical wastes" shall have the meanings
specified in any applicable local, state, federal and foreign laws or
regulations with respect to environmental protection.
(w) The Company is not, and upon the issuance and sale of the
Securities 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 Securities 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 on the
cover page of, and under the caption "Underwriting" in, the Prospectus, the
principal amount of the Securities set forth opposite its name in Schedule I
hereto.
3. Conditions of the Company's Obligations. The Company shall
not be obligated to deliver any Securities except upon payment for all
Securities 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, as the case may be, shall be obligated to purchase
the Securities which the defaulting Underwriter agreed but failed to purchase in
the respective proportions which the principal amount of Securities set forth in
Schedule I hereto to be purchased by each remaining non-defaulting Underwriter
set forth therein bears to the aggregate principal amount of Securities 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 Securities if the aggregate principal amount of Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase exceeds
9.09% of the total principal amount of Securities, and any remaining
non-defaulting Underwriter shall not be obligated to purchase more than 110% of
the principal amount of
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Securities set forth in Schedule I hereto to be purchased by it. If the
foregoing maximums are exceeded, the remaining non-defaulting Underwriters, or
those other underwriters satisfactory to the remaining non-defaulting
Underwriters 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
Securities. If the remaining Underwriters or other underwriters satisfactory to
the remaining non-defaulting Underwriters do not elect to purchase the
Securities 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 that the Company will continue
to be liable for the payment of expenses as set forth in Paragraph 6(j) hereof.
Nothing contained in this Paragraph 4 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
Securities of a defaulting or withdrawing Underwriter, either the remaining
non-defaulting Underwriters 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 Statement, the Prospectus or in any other document or
arrangement.
5. Delivery and Payment for the Securities. Delivery of and payment
for the Securities shall be made at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ at 9:00 a.m. New York City time on February 17, 1999
or such other date as may be agreed to in writing by the Company and the
Underwriters. This date and time are sometimes referred to as the "Delivery
Date." On the Delivery Date the Company shall deliver the Securities to The
Depository Trust Company, on behalf of the Underwriters, 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 Securities shall be in registered form and in such
denominations as may be set forth in the Indenture. The certificates
representing the Securities shall be registered in the name of Cede & Co. and
shall be made available for inspection by the Underwriters 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 Securities, 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 Underwriters such reasonable
number of the following documents as the Underwriters may request: (i)
conformed copies of the Registration Statement (excluding exhibits other
than the computation of the ratio of
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earnings to fixed charges, the Indenture and this Agreement), (ii) the
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, the Prospectus is required by
law to be delivered, to comply with the Act, the Exchange Act, the Trust
Indenture Act and the rules and regulations under each thereof, so as to
permit the completion of the distribution of the Securities as
contemplated in this Agreement and in the Prospectus. If at any time
when a prospectus is required by the Act to be delivered in connection
with sales of the Securities, 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 the
Registration Statement or amend or supplement the Prospectus in order
that the 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 the
Registration Statement or amend or supplement the 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 the Registration
Statement or the 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 the
Registration Statement, (ii) the 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 Underwriters and to counsel
for the Underwriters and not to file any document that shall have been
disapproved by the Underwriters;
(e) To advise the Underwriters promptly (i) when any
post-effective amendment to the Registration Statement relating to or
covering the Securities becomes effective or any supplement to the
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 the Registration Statement (insofar as the
amendment or supplement relates to or covers the Securities), to the
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 the
Registration Statement or any order directed to the 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 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 Securities for sale in any
jurisdiction or the initiation or threat of any proceeding for that
purpose and (v) of the happening of any
9
event which makes untrue any statement of a material fact made in the
Registration Statement or the Prospectus or which requires the making of
a change in the Registration Statement or the 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 the
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 Underwriters 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 Securities, (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 Securities are outstanding, to furnish
to the Underwriters 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 Securities for offer and sale
under the securities laws of such jurisdictions as the Underwriters may
reasonably request and to maintain such qualifications in effect for as
long as may be required for the distribution of the Securities;
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 pay the costs incident to the authorization, issuance,
sale and delivery of the Securities and any taxes payable in that
connection; the costs incident to the preparation, printing and filing
under the Act of the Registration Statement 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 Statement as originally filed and
each amendment and post-effective amendment thereof (including
exhibits), the Preliminary Prospectus, the Prospectus and any documents
incorporated by reference in any of the foregoing documents; the costs
of printing and distributing this Agreement; the fees and disbursements
of the Company's counsel, accountants and other advisors; the fees and
expenses of the Trustee, including the fees and disbursements of counsel
for the Trustee in connection with the Indenture and the Securities, to
the extent the Trustee or its counsel, as the case may be, requires
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reimbursement thereof; 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 Securities the fees and expenses of
qualifying the Securities under the securities laws of the several
jurisdictions as provided in this paragraph and of preparing,
distributing and printing a Blue Sky Memorandum (including reasonable
fees of counsel to the Underwriters); the cost of listing the Securities
on any 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 Securities
which they may sell and the expense of advertising any offer of the
Securities made by the Underwriters;
(k) Until the termination of the offering of the Securities, 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
(l) During the period beginning on the date hereof and continuing
to the Delivery Date, without the consent of the Underwriters, not to
offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company with maturities longer than one year, other
than the Securities 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 Securities), 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 Securities
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,
11
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 concerning such Underwriter furnished to the Company
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 Securities 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 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 concerning such Underwriter
furnished to the Company 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
12
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
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 Underwriters, 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
13
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 or liability by reason of such
settlement or judgment.
(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
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company on the one hand and the
Underwriters on the other 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 Securities 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 Securities purchased under this Agreement, on the other
hand, bear to the total gross proceeds from the offering of the
Securities 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
14
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 Securities 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.
(e) The Underwriters severally confirm and the Company
acknowledges that the statements with respect to the public offering of
the Securities set forth on the cover page of, and under the caption
"Underwriting" in, the Prospectus are correct and constitute the only
information concerning such Underwriters 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 Underwriters by notice given to and received by the
Company prior to delivery of and payment for the Securities 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 Securities 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 this Agreement with respect to the
Securities 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.
(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 the Registration Statement or the
Prospectus or otherwise shall have been
15
complied with; and after the date hereof the Company shall not have
filed with the Commission any amendment or supplement to the
Registration Statement or the Prospectus (or any document incorporated
by reference therein) that shall have been disapproved by the
Underwriters.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to the Delivery Date that the Registration Statement
or the 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.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Securities
and the Indenture and the Registration Statement, the Prospectus 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) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., Senior Vice President, General
Counsel and Secretary of the Company, shall have furnished to the
Underwriters his written opinion addressed to the Underwriters and dated
the Delivery Date, in form and substance reasonably satisfactory to the
Underwriters, to the effect that:
(i) 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;
(ii) 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;
(iii) 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 is
required to be disclosed in the Prospectus (including the
documents incorporated by reference therein) which is not
disclosed and correctly summarized therein;
(iv) To the best of such counsel's knowledge, the Company
is not in violation of its corporate charter or by-laws;
16
(v) To the best of such counsel's knowledge, except as
would not, singly or in the aggregate, have a Material Adverse
Effect, the issue and sale of the Securities being delivered on
such Delivery Date by the Company and the compliance by the
Company with all of the provisions of this Agreement and the
Indenture and the consummation of the transactions contemplated
hereby and thereby will not result in a breach or violation of
any of the terms or provisions of, or constitute a default under,
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 Company or any of its subsidiaries
is subject, nor will such actions result in any violation of the
provisions of the charter or by-laws of the Company or any of its
subsidiaries or any statute or any order, rule or regulation
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 or assets; and
(vi) To the best of such counsel's knowledge, there are no
contracts, agreements or understandings between the Company and
any person granting such person the right to require the Company
to file a registration statement under the Act with respect to
any securities of the Company owned or to be owned by such person
or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or
in any securities being registered pursuant to any other
registration statement filed by the Company under the Act.
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 Underwriters.
(e) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Company, shall
have furnished to the Underwriters its written opinion addressed to the
Underwriters and dated the Delivery Date, in form and substance
reasonably satisfactory to the Underwriters, to the effect that:
(i) The Company has been duly incorporated and are validly
existing and in good standing as a corporation under the laws of
its the State of Delaware;
17
(ii) The Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the Trust
Indenture Act and, assuming that the Indenture is a valid and
binding agreement of the Trustee, constitutes a valid and legally
binding instrument of the Company enforceable against the Company
in accordance with its terms;
(iii) The Securities have been duly authorized, executed
and issued by the Company and, assuming due authentication
thereof by the Trustee and upon payment and delivery in
accordance with this Agreement, will constitute valid and legally
binding obligations of the Company enforceable in accordance with
their terms and entitled to the benefits of the Indenture;
(iv) The issue and sale of the Securities by the Company
and the compliance by the Company with all of the provisions of
this Agreement will not breach or result in a default under any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument identified on the annexed schedule
furnished to such counsel by the Company, nor will such action
violate the Restated Certificate of Incorporation or By-laws of
the Company or any Federal or New York statute or the Delaware
General Corporation Law or any rule or regulation that has been
issued pursuant to any Federal or New York statute or the
Delaware General Corporation Law or any order known to such
counsel issued pursuant to any Federal or New York statute or the
Delaware General Corporation Law by any court or governmental
agency or body or court having jurisdiction over the Company or
any of its subsidiaries or any of their properties;
(v) No consent, approval, authorization, order,
registration or qualification of or with any Federal or New York
governmental agency or body or any Delaware governmental agency
or body acting pursuant to the Delaware General Corporation Law
or, to our knowledge, any Federal or New York court or any
Delaware court acting pursuant to the Delaware General
Corporation Law is required for the issue and sale of the
Securities by the Company and the compliance by the Company with
all of the provisions of the Underwriting Agreement, except for
such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Securities by the Underwriters;
(vi) The statements made in the Prospectus under the
caption "Description of Debt Securities" or "Description of
Notes," 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;
(vii) The Registration Statement has become effective
under the Act and the Prospectus was filed pursuant to Rule
424(b) of the Rules and Regulations and, to our knowledge, no
stop order suspending the effectiveness of the
18
Registration Statement has been issued or proceeding for that
purpose has been instituted or threatened by the Commission;
(viii) This Agreement has been duly authorized, executed
and delivered by the Company;
(ix) The Company is not an "investment company" or an
entity "controlled" by an "investment company," as such terms are
defined in the 1940 Act; and
(x) The statements contained in the Prospectus under the
caption "Certain U.S. Federal Income Tax Consequences to Non-U.S.
Persons," insofar as they purport to constitute summaries of
matters of United States federal tax law and regulations or legal
conclusions with respect thereto constitute accurate summaries of
the matters described therein in all material respects.
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 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 Underwriters a written
statement, addressed to the Underwriters and dated the Delivery Date, in form
and substance satisfactory to the Underwriters, to the effect that (1) such
counsel has acted as counsel to the Company in connection with the preparation
of the Second Registration Statement and the offer and sale of the Securities
(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 Second Registration Statement and the
Prospectus, such counsel participated in conferences with certain officers and
employees of the Company, with representatives of the Company's independent
auditors and with counsel to the Company; (3) prior to the Company's filing with
the Commission documents under the Exchange Act and incorporated by reference in
the Prospectus, such counsel reviewed such documents; and (4) based on (a) such
counsel's examination of the Registration Statement, the Prospectus and the
documents filed by the Company under the Exchange Act and incorporated by
reference in the Prospectus, (b) such counsel's investigation made in connection
with the preparation of the Second Registration Statement and the Prospectus
(excluding the documents filed by the Company under the Exchange Act and
incorporated by reference in the Prospectus) 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 Statement,
as of the effective date of the Second
19
Registration Statement, and the Prospectus, as of its issue date, complied as to
form in all material respects with the requirements of the Act and the Trust
Indenture Act and the applicable rules and regulations of the Commission
thereunder, and each document incorporated by reference in the 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) the Second Registration Statement as of its effective
date, 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
contained, 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 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, incorporated by reference in, or deemed to be incorporated by
reference in the Registration Statement, the Prospectus or documents filed by
the Company under the Exchange Act and incorporated by reference in the
Prospectus. 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 paragraphs (vi) and (x) above.
(f) Boekel de Neree, Special Netherlands Counsel to the Company,
shall have furnished to the Underwriters its written opinion addressed
to the Underwriters and dated the Delivery Date, in form and substance
reasonably satisfactory to the Underwriters, to the effect that:
(i) The Significant Subsidiary has been duly incorporated
and is validly existing as a private limited liability company
incorporated 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.
(g) The Underwriters shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
counsel for the Underwriters, such opinion or opinions, dated such
Delivery Date, with respect to the issuance and sale of the Securities,
the Registration Statement, the Prospectus and other related matters as
the Underwriters may reasonably require, and the Company shall have
furnished to such counsel such documents as they reasonably request for
the purpose of enabling them to pass upon such matters.
20
(h) The Company shall have furnished to the Underwriters 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 Statement 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,
and (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
Statement and the Prospectus and, in their opinion (A) the
Registration Statement, as of the effective date of the Second
Registration Statement, and the Prospectus, as of its issue date
and as of the Delivery 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 the
Second Registration Statement, no event has occurred which should
have been set forth in a supplement or amendment to either the
Registration Statement or the Prospectus.
(i) At the time of execution of this Agreement, the Underwriters
shall have received from KPMG Peat Marwick LLP a letter, in form and
substance satisfactory to the Underwriters, addressed to the
Underwriters and dated the date hereof (i) confirming that they are
independent public accountants within the meaning of the Securities Act
and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date hereof (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 hereof), the
conclusions and findings of such firm with respect to the financial
information and other matters ordinarily covered by accountants'
"comfort letters" to underwriters in connection with registered public
offerings.
(j) With respect to the letter of KPMG Peat Marwick LLP referred
to in the preceding paragraph and delivered to the Underwriters
concurrently with the execution of this Agreement (the "initial
letter"), the Company shall have furnished to the
21
Underwriters a letter (the "bring-down letter") of such accountants,
addressed to the Underwriters and dated such Delivery Date (i)
confirming that they are independent public accountants within the
meaning of the Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule
2-01 of Regulation S-X of the Commission, (ii) stating, as of the date
of the bring-down 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 the bring-down letter), the
conclusions and findings of such firm with respect to the financial
information and other matters covered by the initial letter and (iii)
confirming in all material respects the conclusions and findings set
forth in the initial letter.
(k) (i) Neither the Company nor the Significant Subsidiary shall
have sustained, except as described in or contemplated by the
Registration Statement 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 in the capital stock or long-term debt of the Company or any
of its subsidiaries or 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
Underwriters, 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.
(l) Subsequent to the execution and delivery of this Agreement,
(i) no downgrading shall have occurred in the rating accorded the
Company's debt securities 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
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.
(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
22
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 Securities 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 Securities for delivery to the Underwriters by reason of any
failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed, or because any other condition of the
Underwriters' obligations hereunder required to be fulfilled by the Company is
not fulfilled, the Company will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including fees and disbursements of counsel) incurred by
the Underwriters in connection with this Agreement and the proposed purchase of
the Securities, and upon demand the Company shall pay the full amount thereof to
the Underwriters. If this Agreement is terminated pursuant to Paragraph 4 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
Underwriters. Any notice by the Company to the Underwriters shall be sufficient
if given in writing or by facsimile to ▇▇▇▇▇▇ Brothers Inc., Three World
Financial Center, New York, New York 10285, Attention: Syndicate Department
(Fax: ▇▇▇-▇▇▇-▇▇▇▇), with a copy, in the case of any notice pursuant to
Paragraph 7(d), to the Director of Litigation, Office of the General Counsel,
▇▇▇▇▇▇ Brothers Inc., ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
Any notice by the Underwriters to the Company shall be sufficient if given in
writing or by facsimile addressed to the Company at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Fax:▇▇▇-▇▇▇-▇▇▇▇), Attention: 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 within the meaning of Section 15 of the Act. 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.
23
13. Survival. The respective indemnities, representations, warranties
and agreements of the Company and the Underwriters contained in this Agreement
or made by or on behalf on them, respectively, pursuant to this Agreement, shall
survive the delivery of and payment for the Securities and shall remain in full
force and effect, regardless of any investigation made by or on behalf of any of
them or any person controlling any of them.
14. 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.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF NEW YORK.
16. 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.
17. 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: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and
Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the date first
above written.
▇▇▇▇▇▇ BROTHERS INC. on behalf of
the Underwriters named in Schedule 1 hereto
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
25
SCHEDULE I
Principal
Amount of
Name of Underwriter Securities
-------------------------------------------------------------- ------------
▇▇▇▇▇▇ Brothers Inc........................................... $116,875,000
▇.▇. ▇▇▇▇▇▇ Securities Inc.................................... $116,875,000
ABN AMRO Incorporated......................................... $13,750,000
Deutsche Bank Securities Inc.................................. $13,750,000
PNC Capital Markets, Inc...................................... $13,750,000
------------
Total $275,000,000
============
