EXHIBIT 1.1
▇▇▇▇▇▇ Industries, Inc.
Underwriting Agreement
New York, New York
April __, 1998
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
▇▇▇▇▇▇ Industries, Inc., a Delaware corporation (the "COMPANY"),
proposes to sell to the underwriters named in Schedule II hereto (the
"UNDERWRITERS"), for whom you are acting as representatives (the
"REPRESENTATIVES"), the principal amount of its securities identified in
Schedule I hereto (the "SECURITIES"), to be issued under an indenture
(together with the officers' certificate or officers' certificates
establishing the terms of the Securities pursuant to Section 2.3(a) thereof,
the "INDENTURE"), dated as of April __, 1998, between the Company and The
Bank of New York, as trustee (the "TRUSTEE") . If the firm or firms listed in
Schedule II hereto include only the firm or firms listed in Schedule I
hereto, then the terms "UNDERWRITERS" and "REPRESENTATIVES," as used herein,
shall each be deemed to refer to such firm or firms.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1. Certain terms used in this Section 1 are defined in paragraph (c)
hereof.
a. If the offering of the Securities is a Delayed Offering
(as specified in Schedule I hereto), paragraph (i) below is applicable
and, if the offering of the Securities is a Non-Delayed Offering (as so
specified), paragraph (ii) below is applicable.
i. The Company meets the requirements for the use of
Form S-3 under the Securities Act of 1933, as amended (the "ACT"),
and has filed with the Securities and Exchange Commission (the
"COMMISSION") one or more Regis-
1.1-1
tration Statements (the file number of which is set forth in
Schedule I hereto) on such form, including a Basic Prospectus,
for registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more
amendments thereto, and may have used a Preliminary Final
Prospectus, each of which has previously been furnished to the
Representatives. Such Registration Statement, as so amended, has
become effective. The offering of the Securities is a Delayed
Offering and, although the Basic Prospectus may not include all the
information with respect to the Securities and the offering thereof
required by the Act and the rules thereunder to be included in the
Final Prospectus, the Basic Prospectus includes all such
information required by the Act and the rules thereunder to be
included therein as of the applicable Effective Date. The Company
will next file with the Commission pursuant to Rules 415 and 424(b)
(2) or (5) and Rule 429, if applicable, the Basic Prospectus and a
final supplement thereto relating to the Securities and the
offering thereof. As filed, the Basic Prospectus and such Final
Prospectus supplement shall include all required information with
respect to the Securities and the offering thereof; and, except to
the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to the Representatives prior to the Execution Time or, to
the extent not completed at the Execution Time, shall contain only
such specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised the Representatives, prior
to the Execution Time, will be included or made therein. No stop
order suspending the effectiveness of the Registration Statement or
any post-effective amendment thereto has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission.
ii. The Company meets the requirements for the use of
Form S-3 under the Act and has filed with the Commission a
Registration Statement (the file number of which is set forth in
Schedule I hereto) on such form, including a Basic Prospectus, for
registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more amendments
thereto, including a Preliminary Final Prospectus, each of which
has previously been furnished to the Representatives. The Company
will next file with the Commission either (x) a final prospectus in
accordance with Rules 430A and 424(b) (1) or (4), or (y) prior to
the effectiveness of such Registration Statement, an amendment to
such Registration Statement, including the form of Final Prospectus
supplement. In the case of clause (x), the Company has included in
such Registration Statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the Act
and the rules thereunder to be included in the Final Prospectus
with respect to the Securities and the offering thereof. As filed,
such Final Prospectus supplement or such amendment and form of
Final Prospectus supplement shall contain all Rule 430A
Information,
1.1-2
together with all other such required information,
with respect to the Securities and the offering thereof and, except
to the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to the Representatives prior to the Execution Time or, to
the extent not completed at the Execution Time, shall contain only
such specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised the Representatives, prior
to the Execution Time, will be included or made therein.
b. On the Effective Date, the Registration Statement (including
all consolidated financial statements, together with related schedules
and notes, set forth or incorporated by reference in such document, of
the Company and its consolidated subsidiaries) did or will, and when the
Final Prospectus is first filed (if required) in accordance with Rule
424(b) and on the Closing Date (as defined), the Final Prospectus (and
any supplement thereto, including all consolidated financial statements,
together with related schedules and notes, set forth or incorporated by
reference in such document, of the Company and its consolidated
subsidiaries) will, comply in all material respects with the applicable
requirements of the Act, the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT"), and the Trust Indenture Act of 1939, as amended
(the "TRUST INDENTURE ACT"), and the respective rules thereunder; on the
Effective Date, the Registration Statement did not or will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading; on the Effective Date and on the
Closing Date the Indenture did or will comply in all material respects
with the requirements of the Trust Indenture Act and the rules
thereunder; and, on the Effective Date, the Final Prospectus, if not
filed pursuant to Rule 424(b), did not or will not, and on the date of
any filing pursuant to Rule 424(b) and on the Closing Date, the Final
Prospectus (together with any amendment or supplement thereto) will not,
include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or
warranties as to (i) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of the Trustee or (ii) the information
contained in or omitted from the Registration Statement or the Final
Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by or on
behalf of any Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Final Prospectus (or any
supplement thereto).
c. The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term the "EFFECTIVE DATE" shall mean each
date that the Registration Statement and any post-effective amendment or
amendments thereto became or become effective. "EXECUTION TIME" shall
mean the date and time that this Agreement is executed and delivered by
the parties hereto. "BASIC PROSPECTUS" shall mean the prospectus
1.1-3
referred to in paragraph (a) above contained in the Registration
Statement at the Effective Date or in the form in which it has been most
recently filed with the Commission on or prior to the date of this
Agreement including, in the case of a Non-Delayed Offering, any
Preliminary Final Prospectus. "PRELIMINARY FINAL PROSPECTUS" shall mean
any preliminary prospectus supplement to the Basic Prospectus, together
with the Basic Prospectus, which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus.
"FINAL PROSPECTUS" shall mean the prospectus supplement relating to the
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus or, if, in the case
of a Non-Delayed Offering, no filing pursuant to Rule 424(b) is
required, shall mean the form of final prospectus relating to the
Securities, including the Basic Prospectus, included in the Registration
Statement at the Effective Date. "REGISTRATION STATEMENT" shall mean
the registration statement or registration statements referred to in
paragraph (a) above, including incorporated documents, exhibits and
financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto
becomes effective prior to the Closing Date, shall also mean such
registration statement or registration statements as so amended. Such
term shall include any Rule 430A Information deemed to be included
therein at the Effective Date as provided by Rule 430A. "RULE 415,"
"RULE 424," "RULE 430A" and "REGULATION S-K" refer to such rules or
regulation under the Act. "RULE 430A INFORMATION" means information
with respect to the Securities and the offering thereof permitted to be
omitted from the Registration Statement when it becomes effective
pursuant to Rule 430A. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may
be; and any reference herein to the terms "AMEND," "AMENDMENT" or
"SUPPLEMENT" with respect to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the filing of any document under
the Exchange Act after the Effective Date of the Registration Statement
or the issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be, deemed to be
incorporated therein by reference. A "NON-DELAYED OFFERING" shall mean
an offering of securities which is intended to commence promptly after
the effective date of a registration statement, with the result that,
pursuant to Rules 415 and 430A, all information (other than Rule 430A
Information) with respect to the securities so offered must be included
in such registration statement at the effective date thereof. A
"DELAYED OFFERING" shall mean an offering of securities pursuant to Rule
415 which does not commence promptly after the effective date of a
registration statement, with the result that only information required
pursuant to Rule 415 need be included in such registration statement at
the effective date thereof with respect to the securities so offered.
Whether the offering of the Securities is a Non-Delayed Offering or a
1.1-4
Delayed Offering shall be set forth in Schedule I hereto. The term
"MATERIAL" shall have the meaning given to such term under the Act.
d. The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own, lease and operate
its properties and to conduct its business as presently conducted and as
described in the Preliminary Final Prospectus, if any, and Final
Prospectus, and the Company is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except where the
failure to so qualify would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as
one enterprise, or materially and adversely affect the properties or
assets thereof (a "MATERIAL ADVERSE EFFECT").
e. Each of ▇▇▇▇▇▇▇ Shipbuilding, Inc., ▇▇▇▇▇▇ Systems, Inc., TASC,
Inc., PRC Inc. and Sperry Marine, Inc. (collectively, the "SIGNIFICANT
SUBSIDIARIES") has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own, lease and
operate its properties and to conduct its business as presently conducted
and as described in the Preliminary Final Prospectus, if any, and Final
Prospectus, and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure to so
qualify would not have a Material Adverse Effect.
f. The Company's authorized equity capitalization is as set forth
in the Preliminary Final Prospectus, if any, and Final Prospectus under
the caption "Capitalization." The shares of issued and outstanding
capital stock of the Company have been duly authorized and validly
issued, and are fully paid and nonassessable. All of the issued and
outstanding capital stock of each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and nonassessable and,
except as set forth in the Final Prospectus, is owned, directly or
indirectly, by the Company, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
g. There is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, or arbitrator, now
pending, or, to the knowledge of the Company, threatened, against or
affecting the Company or any of its Significant Subsidiaries which is
required to be disclosed in the Registration Statement or the
Preliminary Final Prospectus, if any, and Final Prospectus (other than
as disclosed therein), or which reasonably would be expected to result
in any Material Adverse Effect or which reasonably would be expected to
materially and adversely affect the properties or assets thereof or
which reasonably would be expected to affect the consummation of this
Agreement or which reasonably would be expected to question the validity
of the Indenture or the
1.1-5
Securities, and the Company has complied with every request, if any, of the
Commission or any securities authority or agency of any jurisdiction for
additional information (to be included in the Registration Statement, the
Preliminary Final Prospectus, if any, and Final Prospectus or otherwise)
in all material respects.
h. The Company and its Significant Subsidiaries have good and
marketable title for the use made and proposed to be made of all of
their respective properties, in each case free and clear of all liens,
encumbrances and defects, except as stated in the Preliminary Final
Prospectus, if any, and Final Prospectus, or such as do not materially
interfere with the use made and proposed to be made of such properties;
all of the leases and subleases of the Company and its subsidiaries, and
under which the Company or any of its subsidiaries holds properties
described in the Preliminary Final Prospectus, if any, and Final
Prospectus, are in full force and effect, except for such which would
not have a Material Adverse Effect; and neither the Company nor any
subsidiary has any notice of any claim of any sort that has been
asserted by anyone adverse to the rights of the Company or any
subsidiary under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such subsidiary to
the continued possession of the leased or subleased premises under any
such lease or sublease, except for such which would not have a Material
Adverse Effect.
i. 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 Preliminary Final Prospectus, if any,
and Final Prospectus, any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in
the Preliminary Final Prospectus, if any, and Final Prospectus; and,
since the respective dates as of which information is given in the
Registration Statement, the Preliminary Final Prospectus, if any, and
the Final 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, other than as set forth
or contemplated in the Preliminary Final Prospectus, if any, and Final
Prospectus.
j. The Indenture has been duly authorized, executed and delivered,
has been duly qualified under the Trust Indenture Act, and constitutes a
legal, valid and binding instrument enforceable against the Company in
accordance with its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or other
laws affecting creditors' rights generally from time to time in effect
and to general equity principles); the Securities have been duly
authorized and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Underwriters pursuant to this Agreement, in the case of the
Underwriters'
1.1-6
Securities, or by the purchasers thereof pursuant to Delayed Delivery
Contracts (as defined below), in the case of any Contract Securities
(as defined below), will constitute legal, valid and binding obligations
of the Company entitled to the benefits of the Indenture; and this
Agreement has been duly authorized, executed and delivered by the Company.
k. Neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated
(including the execution and delivery of this Agreement and the
Indenture) nor the fulfillment of the terms hereof or of any Delayed
Delivery Contracts will conflict with, result in a breach or violation
of, or constitute a default under, or, if applicable, cause an
acceleration of any obligation under, give any person the right to
require the Company or any of its subsidiaries to repurchase or redeem
any securities under, or result in the imposition or creation of (or the
obligation to create or impose) any security interest, mortgage, pledge,
claim, lien, encumbrance or adverse interest of any nature with respect
to, any law or the charter or by-laws of the Company or any subsidiary
or the terms of any indenture or other agreement or instrument to which
the Company or any of its subsidiaries is a party or bound or to which
any property or assets of the Company or any of its subsidiaries is
subject or any applicable law, judgment, order or decree applicable to
the Company or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its subsidiaries, except for
such conflicts or violations which would not, singly or in the
aggregate, have a Material Adverse Effect.
l. All real property owned or operated by the Company or any of
its subsidiaries (hereinafter referred to as the "COMPANY REAL
PROPERTY") and all activities of the Company and each of its
subsidiaries are in compliance with all applicable environmental laws
and regulations, except for such noncompliance which would not have a
Material Adverse Effect. The Company and its subsidiaries are not
subject to liability under any environmental laws or regulations except
as would not have a Material Adverse Effect. There are no outstanding
citations, notices of violations, or orders of noncompliance issued to
the Company or any of its subsidiaries, nor has the Company or any of
its subsidiaries been advised that any such citation, notice of
violation or order or noncompliance is contemplated, pursuant to any
environmental law or regulation relating to any Company Real Property or
relating to any real property formerly owned or operated by the Company
or any of its subsidiaries which would have a Material Adverse Effect.
There are no liens against Company Real Property imposed pursuant to any
environmental law or regulation which would have a Material Adverse
Effect.
m. The statements set forth in the Preliminary Final Prospectus,
if any, and Final Prospectus under the caption "Description of the
Securities" insofar as it purports to constitute a summary of the terms
of the Securities and the Indenture, and under the captions "Plan of
Distribution" and "Underwriting" insofar as they purport to describe the
provisions of the laws and documents referred to therein, are in all
material respects accurate summaries of such terms and provisions.
1.1-7
n. Neither the Company nor any of its Significant Subsidiaries is in
violation of its charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any indenture or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound, which default would have a
Material Adverse Effect .
o. The Company is not and, after giving effect to the offering and sale
of the Securities, 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 "INVESTMENT COMPANY ACT").
p. Deloitte & Touche LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
q. There are no contracts or documents which are required to be
described in the Registration Statement, the Preliminary Final Prospectus, if
any, and Final Prospectus or the documents incorporated by reference therein
or to be filed as exhibits thereto which have not been so described and filed
as required.
r. The Company and its subsidiaries own or possess, or can acquire on
reasonable terms, adequate patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, the "INTELLECTUAL PROPERTY") necessary to carry on the
business now operated by them, other than those which would not, singly or in
the aggregate, have a Material Adverse Effect, and neither the Company nor
any of its subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect to
any Intellectual Property or of any facts or circumstances which would render
any Intellectual Property invalid or inadequate to protect the interest of
the Company or any of its subsidiaries therein, and which infringement or
conflict (if the subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, singly or in the aggregate, would result in a
Material Adverse Effect.
Any certificate signed by any officer of the Company or any of its
subsidiaries delivered to the Underwriters or to counsel for the Underwriters
shall be deemed a representation and warranty by the Company to each Underwriter
as to the matters covered thereby.
2. PURCHASE AND SALE. 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, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase
price set forth in Schedule I hereto the principal amount of the Securities
set forth
1.1-8
opposite such Underwriter's name in Schedule II hereto, except that, if
Schedule I hereto provides for the sale of Securities pursuant to Delayed
Delivery Contracts, the respective principal amounts of Securities to be
purchased by the Underwriters shall be as set forth in Schedule II hereto
less the respective amounts of Contract Securities determined as provided
below and provided further that such amounts purchased by each Underwriter
may be adjusted as set forth in Section 8 hereof. Securities to be purchased
by the Underwriters are herein sometimes called the "UNDERWRITERS'
SECURITIES" and Securities to be purchased pursuant to Delayed Delivery
Contracts as hereinafter provided are herein called "CONTRACT SECURITIES."
If so provided in Schedule I hereto, the Underwriters are authorized
to solicit offers to purchase Securities from the Company pursuant to delayed
delivery contracts ("DELAYED DELIVERY CONTRACTS"), substantially in the form of
Schedule III hereto but with such changes therein as the Company may authorize
or approve. The Underwriters will endeavor to make such arrangements and, as
compensation therefor, the Company will pay to the Representatives, for the
account of the Underwriters, on the Closing Date, the percentage set forth in
Schedule I hereto of the principal amount of the Securities for which Delayed
Delivery Contracts are made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. The Company will enter into Delayed Delivery Contracts in all
cases where sales of Contract Securities arranged by the Underwriters have been
approved by the Company but, except as the Company may otherwise agree, each
such Delayed Delivery Contract must be for not less than the minimum principal
amount set forth in Schedule I hereto and the aggregate principal amount of
Contract Securities may not exceed the maximum aggregate principal amount set
forth in Schedule I hereto. The Underwriters will not have any responsibility
in respect of the validity or performance of Delayed Delivery Contracts. The
principal amount of Securities to be purchased by each Underwriter as set forth
in Schedule II hereto shall be reduced by an amount which shall bear the same
proportion to the total principal amount of Contract Securities as the principal
amount of Securities set forth opposite the name of such Underwriter bears to
the aggregate principal amount set forth in Schedule II hereto, except to the
extent that the Representatives determine that such reduction shall be otherwise
than in such proportion and so advise the Company in writing; provided, however,
that the total principal amount of Securities to be purchased by all
Underwriters shall be the aggregate principal amount set forth in Schedule II
hereto less the aggregate principal amount of Contract Securities.
3. DELIVERY AND PAYMENT. The Securities to be purchased by each
Underwriter hereunder, in definitive form, and in such authorized
denominations and registered in such names as the Representatives may request
upon at least forty-eight hours' prior notice to the Company shall be
delivered by or on behalf of the Company to the Representatives, through the
facilities of The Depository Trust Company ("DTC"), for the account of such
Underwriters, against payment by or on behalf of such Underwriters of the
purchase price therefor in immediately available (same day) funds. The
Company will cause the certificates representing the Securities to be made
available for checking and packaging at least twenty-four hours prior to the
Closing Date
1.1-9
with respect thereto at the office of DTC or its designated custodian. The
time and date of such delivery and payment shall be made on the date and at
the time specified in Schedule I hereto (or such later date not later than
five business days after such specified date as the Representatives shall
designate), which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 8 hereof (such date
and time of delivery and payment for the Underwriters' Securities being
herein called the "CLOSING DATE") . Payment for the Securities shall be made
at the office specified in Schedule I hereto.
4. AGREEMENTS. The Company agrees with the several Underwriters that:
a. The Company will comply with the requirements of Rule 434 under
the Act, if applicable. The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereto, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment to the
Registration Statement or supplement (including the Final Prospectus or any
Preliminary Final Prospectus) to the Basic Prospectus unless the Company has
furnished the Representatives a copy for their review prior to filing and
will not file any such proposed amendment or supplement to which the
Representatives object. Subject to the foregoing sentence, the Company will
cause the Final Prospectus, properly completed, and any supplement thereto to
be filed with the Commission pursuant to the applicable paragraph of Rule
424(b) within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The Company will
promptly advise the Representatives (i) when the Registration Statement, if
not effective at the Execution Time, and any amendment thereto, shall have
become effective, (ii) when the Final Prospectus, and any supplement thereto,
shall have been filed with the Commission pursuant to Rule 424(b), (iii)
when, prior to termination of the offering of the Securities, any amendment
to the Registration Statement shall have been filed or become effective, (iv)
of any request by the Commission for any amendment of the Registration
Statement or supplement to the Final Prospectus or for any additional
information or upon the receipt of any comments from the Commission, (v) of
the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threatening of any
proceeding for that purpose and (vi) of the 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 threatening of
any proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order and, if issued, to obtain as soon
as possible the withdrawal thereof.
b. The Company will file promptly all reports and any definitive proxy
or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
for so long as a prospectus relating to the Securities is required to be
delivered under the Act. The Company will comply with the Act, the Exchange
Act, the Trust Indenture Act, and the rules and regulations promulgated
thereunder, so as to permit the completion of the distribution of the
securities as
1.1-10
contemplated in this Agreement and in the Final Prospectus. If, at any time
when a prospectus relating to the Securities is required to be delivered
under the Act, any event occurs as a result of which the Final Prospectus as
then supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein in
the light of the circumstances under which they were made not misleading, or
if it shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will prepare and file with
the Commission, subject to the second sentence of paragraph (a) of this
Section 4, an amendment or supplement which will correct such statement or
omission or effect such compliance.
c. The Company will give the Representatives notice of its intention
to file or prepare any amendment to the Registration Statement (including
any filing under Rule 462(b) of the Act), any term sheet or any amendment,
supplement or revision to either the Basic Prospectus included in the
Registration Statement at the time it became effective or to the Final
Prospectus, whether pursuant to the Act, the Exchange Act or otherwise,
will furnish the Representatives with copies of any such documents a
reasonable amount of time prior to such proposed filing or use, as the case
may be, and will not file or use any such document to which the
Representatives or counsel for the Underwriters shall object.
d. As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
e. Prior to 10:00 a.m., New York City time, on the business day next
succeeding the date of this Agreement and from time to time, the Company will
furnish to the Representatives and counsel for the Underwriters, without
charge, copies of the Registration Statement (including exhibits thereto)
and, so long as delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of any Preliminary Final Prospectus and
the Final Prospectus and any supplement thereto as the Representatives may
reasonably request.
f. The Company has delivered to each Underwriter, without charge, as
many copies of each Preliminary Final Prospectus as such Underwriter
reasonably requested, and the Company hereby consents to the use of such
copies for purposes permitted by the Act. The Company will furnish to each
Underwriter, without charge, during the period when the Final Prospectus is
required to be delivered under the Act or the Exchange Act, such number of
copies of the Final Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Final Prospectus and any amendments
or supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant
to ▇▇▇▇▇, except to the extent permitted by Regulation S-T under the Act.
1.1-11
g. The Company will arrange for the qualification of the Securities
for sale under the laws of such jurisdictions as the Representatives may
designate, will maintain such qualifications in effect and will comply with
such laws so long as required for the distribution of the Securities and will
arrange for the determination of the legality of the Securities for purchase
by institutional investors.
h. Until the business date set forth on Schedule I hereto, the
Company will not, without the consent of the Representatives, offer, sell or
contract to sell, or otherwise dispose of, directly or indirectly, or
announce the offering of, any debt securities issued or guaranteed by the
Company (other than the Securities).
i. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel, accountants and other
advisors in connection with the registration of the Securities under the Act
and all other expenses in connection with the preparation, printing and
filing of the Registration Statement, any Preliminary Final Prospectus and
the Final Prospectus and amendments and supplements thereto and the mailing
and delivering of copies thereof to the Underwriters and dealers; (ii) the
cost of preparing, printing, delivering or producing any Agreement among
Underwriters, this Agreement, the Indenture, any Blue Sky and Legal
Investment Memoranda, closing documents (including any compilations thereof)
and any other documents in connection with the offering, purchase, sale and
delivery of the Securities; (iii) all expenses in connection with the
qualification of the Securities for offering and sale under state securities
laws as provided in Section 4 (e) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and Legal Investment
Surveys; (iv) any fees charged by securities rating services for rating the
Securities; (v) any filing fees incident to, and the fees and disbursements
of counsel for the Underwriters in connection with, any required review by
the National Association of Securities Dealers, Inc. of the terms of the sale
of the Securities; (vi) the cost of preparing, issuing and delivering the
Securities; (vii) the fees and expenses of any Trustee and any agent of any
Trustee and the fees and disbursements of counsel for any Trustee in
connection with any Indenture and the Securities; and (viii) all other costs
and expenses incident to the performance of its obligations hereunder which
are not otherwise specifically provided for in this Section. It is
understood, however, that except as provided in this Section, and Sections 6
and 7 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected with any offers
they may make.
j. The Company will use the net proceeds received by it from the sale
of the Securities in the manner specified in the Final Prospectus under the
caption "Use of Proceeds."
1.1-12
5. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the Underwriters to purchase the Underwriters' Securities shall be subject
to the accuracy of the representations and warranties on the part of the
Company contained herein as of the Execution Time and the Closing Date, to
the accuracy of the statements of the Company made in any certificates
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
a. If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 12:00 Noon New York City time on the
business day following the day on which the public offering price was
determined, if such determination occurred after 3:00 PM New York City time
on such date, if filing of the Final Prospectus, or any supplement thereto,
is required pursuant to Rule 424(b), the Final Prospectus, and any such
supplement, shall have been filed in the manner and within the time period
required by Rule 424 (b); and no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened and all requests for
additional information on the part of the Commission shall have been complied
with to the Representatives' reasonable satisfaction.
b. On the Closing Date, the Company shall have furnished to the
Representatives the opinion (a draft of such opinion is attached as Annex I
hereto) of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Vice President and General Counsel of the
Company, dated the Closing Date, to the effect that:
i. each of the Company and the Significant Subsidiaries has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is chartered
or organized, with full corporate power and authority to own its
properties and conduct its business as described in the Final Prospectus,
and is duly qualified to do business as a foreign corporation and is in
good standing under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties or conducts
material business, except where the failure to so qualify would not have
a Material Adverse Effect;
ii. all the outstanding shares of capital stock of each
Significant Subsidiary have been duly and validly authorized and issued
and are fully paid and nonassessable, and, except as otherwise set forth
in the Final Prospectus, all outstanding shares of capital stock of the
Significant Subsidiaries are owned by the Company, either directly or
through wholly-owned subsidiaries, free and
1.1-13
clear of any perfected security interest and, to the knowledge of such
counsel, after due inquiry, any other security interests, claims, liens
or encumbrances;
iii. the Company's authorized equity capitalization is as set forth
in the Final Prospectus under the caption "Capitalization;" the shares
of issued and outstanding capital stock of the Company have been duly
authorized and validly issued, and are fully paid and nonassessable;
and, if the Securities are to be listed on any securities exchange,
authorization therefor has been given, subject to official notice of
issuance and evidence of satisfactory distribution, or the Company has
filed a preliminary listing application and all required supporting
documents with respect to the Securities with such securities exchange
and such counsel has no reason to believe that the Securities will not
be authorized for listing, subject to official notice of issuance and
evidence of satisfactory distribution;
iv. the Indenture has been duly authorized, executed and delivered,
has been duly qualified under the Trust Indenture Act, and constitutes a
legal, valid and binding instrument enforceable against the Company in
accordance with its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or other
laws affecting creditors' rights generally from time to time in effect
and to general equity principles); and the Securities have been duly
authorized and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Underwriters pursuant to this Agreement, in the case of the
Underwriters' Securities, or by the purchasers thereof pursuant to
Delayed Delivery Contracts, in the case of any Contract Securities, will
constitute legal, valid and binding obligations of the Company entitled
to the benefits of the Indenture;
v. other than as disclosed in the Final Prospectus, there is no
pending or to the best knowledge of such counsel, threatened action,
suit or proceeding before any court or governmental agency, authority
or body or any arbitrator involving the Company or any of its
subsidiaries, which reasonably would be expected to result in any
Material Adverse Effect or which reasonably would be expected to affect
the consummation of this Agreement or which reasonably would be expected
to question the validity of the Indenture or the Securities, and the
Company has complied with every request, if any, of the Commission or
any securities authority or agency of any jurisdiction for additional
information (to be included in the Registration Statement, the
Preliminary Final Prospectus, if any, and Final Prospectus or otherwise)
in all material respects; there is no franchise, contract or other
document of a character required to be described in the Registration
Statement or Final Prospectus, or to be filed as an exhibit thereto,
which is not described or filed as required; and, the statements
included or incorporated in the Final Prospectus describing any legal
proceedings or
1.1-14
material contracts or agreements relating to the Company fairly summarize
such matters. In rendering the opinion set forth above, such counsel may
state that the Company is a party to various contracts with the U.S.
Government and, in the current governmental contracting environment,
contractors may be subject to investigations by the U.S. Government,
without their knowledge, which may be initiated in various ways;
however, such counsel is not aware of any such ongoing investigations
which are not disclosed as required;
vi. the Registration Statement has become effective under the Act;
any required filing of the Basic Prospectus, any Preliminary Final
Prospectus and the Final Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); to the best knowledge of such counsel,
no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been instituted
or threatened; and, the Registration Statement and the Final Prospectus
(other than the financial statements and pro forma financial statements
and other financial data contained therein as to which such counsel need
express no opinion) comply as to form in all material respects with the
applicable requirements of the Act, the Exchange Act and the Trust
Indenture Act and the respective rules thereunder;
vii. this Agreement and any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company;
viii. no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution and delivery
of this Agreement or the Indenture or in connection with the
consummation of the transactions contemplated herein or in any Delayed
Delivery Contracts, except such as have been obtained under the Act and
the Trust Indenture Act, and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters and such other
approvals (specified in such opinion) as have been obtained;
ix. neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated
(including the execution and delivery of this Agreement and the
Indenture) nor the fulfillment of the terms hereof or of any Delayed
Delivery Contracts will conflict with, result in a breach or violation
of, or constitute a default under, or, if applicable, cause an
acceleration of any obligation under, give any person the right to
require the Company or any of its subsidiaries to repurchase or redeem
any securities under, or result in the imposition or creation of (or
the obligation to create or impose) any security interest, mortgage,
pledge, claim, lien, encumbrance or adverse interest of any nature with
respect to, any law or the charter or by-laws of the
1.1-15
Company or any subsidiary or the terms of any indenture or other
agreement or instrument known to such counsel and to which the Company
or any of its subsidiaries is a party or bound or to which any property
or assets of the Company or any of its subsidiaries is subject or any
applicable law, judgment, order or decree known to such counsel to be
applicable to the Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over the Company or any of its subsidiaries, except
for such conflicts or violations which would not, singly or in the
aggregate, have a Material Adverse Effect;
x. no holders of securities of the Company have rights (which
have not been waived) to the registration of such securities under the
Registration Statement;
xi. neither the Company nor any of its Significant Subsidiaries is
in violation of its charter or bylaws or, to the best knowledge of such
counsel, in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any indenture
or other agreement or instrument to which it is a party or by which it
or any of its properties may be bound, which default would have a
material adverse effect on the Company and its subsidiaries considered
as one enterprise;
xii. the statements set forth in the Final Prospectus under the
captions "Description of the Securities" and "Underwriting" insofar as
they purport to describe the provisions of the laws and documents
referred to therein, are in all material respects accurate summaries of
such terms and provisions;
xiii. the Company is not an "investment company or an entity
"controlled" by an "investment company", as such terms are defined in
the Investment Company Act;
xiv. to the best knowledge of such counsel, there are no statutes
or regulations that are required to be described in the Final
Prospectus that are not described as required; and
xv. the documents incorporated by reference in the Prospectus
(other than the financial statements and notes thereto, schedules and
other financial data included in, incorporated by reference in or
omitted therefrom, as to which such counsel expresses no opinion), when
they became effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the requirements
of the Act, the Exchange Act and the rules and regulations of the
Commission thereunder.
1.1-16
In addition, such counsel shall state that such counsel, or a member
of his department, has reviewed the Registration Statement and Final
Prospectus, participated in discussions with officers and other
representatives of the Company and representatives of the independent
public accountants of the Company and representatives of the Underwriters
and their counsel at which the contents of the Registration Statement and
Final Prospectus were discussed and, although such counsel has not
independently verified and is not passing upon and does not assume
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Final Prospectus except for
those made under the captions "Description of the Securities" and
"Underwriting" in the Final Prospectus insofar as they relate to provisions
of documents therein described, such counsel has no reason to believe that
at the Effective Date the Registration Statement contained any untrue
statement of a material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading or that the Final Prospectus as of the date of the Final
Prospectus supplement included any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading or that either the Registration Statement or the Final
Prospectus, including any amendment thereto, as of the Closing Date
includes any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Such counsel may
state that he does not express any opinion or belief as to the financial
statements, pro forma financial statements and other financial data
contained in the Registration Statement or Final Prospectus, or as to the
statement of the eligibility and qualification of the Trustee under the
Indenture under which the Securities are being issued.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of New York, to the extent deemed proper
and specified in such opinion, upon the opinion of Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP and (B) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the Company and public
officials. References to the Final Prospectus in this paragraph (b)
include any supplements thereto at the Closing Date.
c. On the Closing Date, the Representatives shall have received
from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
Underwriters, such opinion or opinions, dated the Closing Date, with
respect to the issuance and sale of the Securities, the Indenture, any
Delayed Delivery Contracts, the Registration Statement, the Final
Prospectus (together with any supplement thereto) and other related
matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters. In giving such
opinion, such counsel may rely, as to all matters governed by the laws
of jurisdictions other than the law of the State of New York, the
federal law of the United States and the General Corporation Law of the
State of Delaware, upon the opinions of counsel satisfactory to the
Representatives. Such counsel may also state that, insofar as
1.1-17
such opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
d. The Company shall have furnished to the Representatives a
certificate of the Company, signed by either the Chairman of the Board
or the Chief Executive Officer and President and the principal financial
or accounting officer of the Company, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus, any supplement to the
Final Prospectus and this Agreement and that:
i. the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as
of the Closing Date with the same effect as if made on the Closing
Date and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
ii. no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened;
iii. 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 Final 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,
otherwise than as set forth or contemplated in the Final
Prospectus, and since the respective dates as of which information
is given in the Final 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 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 Final Prospectus; and
iv. the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
at or prior to the Closing Date pursuant to this Agreement.
e. At the Closing Date, Deloitte & Touche LLP shall have furnished
to the Representatives a letter or letters (which may refer to letters
previously delivered to one or more of the Representatives), dated as of
the Closing Date, in form and substance satisfactory to the
Representatives, to the effect set forth in Annex II. In addition, at
the Execution
1.1-18
Time, Deloitte & Touche LLP shall have furnished to the
Representatives a draft letter or letters, dated as of the Execution
Time, in form and substance satisfactory to the Representatives, to the
effect set forth in Annex II. The executed copy of the letter delivered
at the Execution Time is attached as Annex III hereto and a draft of the
form of letter to be delivered on the Closing Date is attached as Annex
IV hereto.
f. (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Final 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, otherwise than as set
forth or contemplated in the Final Prospectus, and (ii) since the
respective dates as of which information is given in the Final
Prospectus 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 its subsidiaries, otherwise
than as set forth or contemplated in the Final Prospectus, the effect of
which, in any such case described in clause (i) or (ii), is in the
judgment of the Representatives 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 Final Prospectus as first amended or supplemented relating to the
Securities.
g. On or after the date of this Agreement, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purpose of Rule 436(g) under the Act) or any notice given of
any intended or potential decrease in any such rating or of a possible
change in any such rating that does not indicate the direction of the
possible change.
h. Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents
as the Representatives or their counsel may reasonably request.
i. The Company shall have accepted Delayed Delivery Contracts in
any case where sales of Contract Securities arranged by the Underwriters
have been approved by the Company.
j. The Company shall have complied with the provisions of Section
4 (d) hereof with respect to the furnishing of Final Prospectuses on the
business day next succeeding the date of this Agreement.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or
if any of the opinions and certifi-
1.1-19
▇▇▇▇▇ mentioned above or elsewhere in this Agreement shall not be in all
material respects reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
6. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Securities provided for herein is not consummated because any condition to
the obligations of the Underwriters set forth in Section 5 hereof is not
satisfied, because of any termination pursuant to Section 9 hereof or because
of any refusal, inability or failure on the part of the Company to perform
any agreement herein or to comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company will reimburse
the Underwriters severally upon demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel for the Underwriters)
that shall have been incurred by them in connection with the proposed
purchase and sale of the Securities.
7. INDEMNIFICATION AND CONTRIBUTION.
a. The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the
meaning of either the Act or the Exchange Act against any and all
losses, claims, damages, liabilities or amounts paid in settlement (or
actions in respect thereof), joint or several, to which they or any of
them may become subject under the Act, the Exchange Act or other Federal
or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or amounts paid in
settlement (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement for the registration of the
Securities as originally filed or in any amendment thereof, or in the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and agrees to reimburse each
such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or
is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for
inclusion therein. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
1.1-20
b. Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, to the
same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to written information relating to
such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for inclusion in
the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have.
c. Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not otherwise
learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not,
in any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for
which indemnification is sought (in which case the indemnifying party
shall not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except as
set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential
defendants (including impleaded parties) in, or targets of, any such
action include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which
are different from or additional to those available to the indemnifying
party, (iii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the
institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not,
without the prior written consent of the indemnified parties, 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
1-1-21
unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding and does not
include a statement as to or an admission of fault, culpability or a
failure to act, by or on behalf of any indemnified party.
d. In the event that the indemnity provided in paragraph (a) or
(b) of this Section 7 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, each indemnifying party agrees to
contribute to the aggregate losses, claims, damages, liabilities and
amounts paid in settlement (including legal or other expenses reasonably
incurred in connection with investigating or defending the same)
(collectively, the "LOSSES") to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand,
and by the Underwriters, on the other hand, from the offering of the
Securities; provided, however, that in no case shall any Underwriter
(except as may be provided in any agreement among the Underwriters
relating to the offering of the Securities) be responsible for any
amount in excess of the underwriting discount or commission applicable
to the Securities purchased by such Underwriter hereunder. If the
allocation provided by the immediately preceding sentence is unavailable
for any reason, the Company and the Underwriters shall contribute in such
proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company, on the one hand, and of the
Underwriters, on the other hand, in connection with the statements or
omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company shall be
deemed to be equal to the total net proceeds from the offering (before
deducting expenses), and benefits received by the Underwriters shall be
deemed to be equal to the total underwriting discounts and commissions,
in each case as set forth on the cover page of the Final Prospectus.
Relative fault shall be determined by reference to whether any alleged
untrue statement or omission relates to information provided by the
Company and the Underwriters. The Company and the Underwriters agree
that it would not be just and equitable if contribution were determined
by pro rata allocation or any other method of allocation which does not
take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), 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. For purposes of this
Section 7, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee
and agent of an Underwriter shall have the same rights to contribution
as such Underwriter, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the
Company who has signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company,
subject in each case to the applicable terms and conditions of this
paragraph (d). Each Underwriters' obligation to contribute pursuant to
this sections is several and not joint.
1.1-22
8. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure
to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall
be obligated severally to purchase and pay for (in the respective
proportions which the amount of Securities set forth opposite their
names in Schedule II hereto bears to the aggregate amount of Securities
set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the
aggregate amount of Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the
aggregate amount of Securities set forth in Schedule II hereto, the
remaining Underwriters shall have the right to purchase all, but shall
not be under any obligation to purchase any, of the Securities, and if
such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by an Underwriter
as set forth in this Section 8, the Closing Date shall be postponed for
such period, not exceeding seven days, as the Representatives shall
determine in order that the required changes in the Registration
Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
9. TERMINATION. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the
Company prior to delivery of and payment for the Securities, if prior to
such time (i) trading in the Company's Common Stock shall have been
suspended or limited by the Commission or the New York Stock Exchange or
trading in securities generally on the New York Stock Exchange shall
have been suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a general moratorium on commercial
banking shall have been declared either by Federal or New York State
authorities, (iii) there shall have occurred any material adverse change
in the financial markets or any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war or other
calamity or crisis, the effect of which is such as to make it, in the
judgment of the Representatives, impracticable or inadvisable to proceed
with the offering or delivery of the Securities as contemplated by the
Final Prospectus (exclusive of any supplement thereto), or (iv) if there
has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Final
Prospectus, any Material Adverse Effect.
10. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set
forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or the Company or any of the officers, directors or
controlling persons referred to in Section 7 hereof, and will survive
delivery of and payment for the Securities. The provisions of Sections 6
and 7 hereof shall survive the termination or cancellation of this
Agreement.
1.1-23
11. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telegraphed and confirmed to them, at the address
specified in Schedule I hereto; or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of the General
Counsel.
12. SUCCESSORS. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and
the officers and directors and controlling persons referred to in
Section 7 hereof, and no other person will have any right or obligation
hereunder.
13. APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
1.1-24
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
▇▇▇▇▇▇ INDUSTRIES, INC.
By:
-----------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
By:
----------------------------------
Authorized Signatory
On behalf of each of the Underwriters
1.1-25
SCHEDULE I
Underwriting Agreement dated:
Registration Statement No. __________
Representatives:
Title, Purchase Price and Description of Securities:
I. Title:
Principal amount:
Purchase price (include accrued interest or amortization, if any)
Sinking fund provisions:
Redemption provisions:
Other provisions:
________________________________
Closing Date, Time and Location:
Type of Offering:
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each contract:
Maximum aggregate principal amount of all contracts:
Date referred to in Section 4(f) after which the Company may offer or sell debt
securities issued or guaranteed by the Company without the consent of the
Representative(s):
I-1
In all dealings hereunder, the Representatives of the Underwriters shall act on
behalf of each of such Underwriters, and the parties hereto shall be entitled to
act and rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by such Representatives jointly or by
_________________.
I-2
SCHEDULE II
UNDERWRITERS
II-1
SCHEDULE III
Delayed Delivery Contract
_______________, 19__
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from ▇▇▇▇▇▇ Industries,
Inc. (the "Company"), and the Company agrees to sell to the undersigned, on
_____________, 19__, (the "Delivery Date"), $__________ principal amount of
the Company's __________________ (the "Securities") offered by the Company's
Prospectus dated __________, 19__, and related Prospectus Supplement dated
____________, 19__, receipt of a copy of which is hereby acknowledged, at a
purchase price of __% of the principal amount thereof, plus [accrued interest]
[amortization of original issue discount], if any, thereon from ___________
19__, to the date of payment and delivery, and on the further terms and
conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned shall
be made on or before 11:00 AM, New York City time, on the Delivery Date to or
upon the order of the Company in New York Clearing House (next day) funds, at
your office or at such other place as shall be agreed between the Company and
the undersigned, upon delivery to the undersigned of the Securities in
definitive fully registered form and in such authorized denominations and
registered in such names as the undersigned may request by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date. If no request is received, the
Securities will be registered in the name of the undersigned and issued in a
denomination equal to the aggregate principal amount of Securities to be
purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for Securities on the Delivery Date, and the obligation of the
Company to sell and deliver Securities on the Delivery Date, shall be subject
to the conditions (and neither party shall incur any liability by reason of
the failure thereof) that (1) the purchase of Securities to be made by the
undersigned, which purchase the undersigned represents is not prohibited on
the date hereof, shall not on the Delivery Date be prohibited under the laws
of the jurisdiction to which the undersigned is subject, and (2) the Company,
on or before the Delivery Date, shall have sold to certain underwriters (the
"Underwriters") such principal
III-1
amount of the Securities as is to be sold to them pursuant to the
Underwriting Agreement referred to in the Prospectus and Prospectus
Supplement mentioned above. Promptly after completion of such sale to the
Underwriters, the Company will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by a copy of the
opinion of counsel for the Company delivered to the Underwriters in
connection therewith. The obligation of the undersigned to take delivery of
and make payment for the Securities, and the obligation of the Company to
cause the Securities to be sold and delivered, shall not be affected by the
failure of any purchaser to take delivery of and make payment for the
Securities pursuant to other contracts similar to this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
III-2
This agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Very truly yours,
---------------------------------
(Name of Purchaser)
By:
------------------------------
(Signature and Title of Officer)
---------------------------------
(Address)
Accepted:
▇▇▇▇▇▇ Industries, Inc.,
By
-------------------------------
(Authorized Signature)
III-3
Annex II
Pursuant to Section 5(e) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and
the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial information)
and/or examined by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the Act
or the Exchange Act, as applicable, and the related published rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
financial forecasts and/or condensed financial statements derived from
audited financial statements of the Company for the periods specified in
such letter, as indicated in their reports thereon, copies of which have
been separately furnished to the representative or representatives of
the Underwriters (the "REPRESENTATIVES") such term to include an
Underwriter or Underwriters who act without any firm being designated as
its or their representatives;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Prospectus and/or included in the Company's quarterly reports on Form
10-Q incorporated by reference into the Prospectus as indicated in their
reports thereon copies of which have been separately furnished to the
Representatives; and on the basis of specified procedures including
inquires of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited
condensed consolidated financial statements referred to in paragraph
(vi) (A) (i) below comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and
the related published rules and regulations, nothing came to their
attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all
material respects with the applicable accounting requirements of the Act
and the Exchange Act and the related published rules and regulations;
Annex II-1
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the three most recent fiscal years included in the Final
Prospectus and included or incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for five
such fiscal years which were included or incorporated by reference in
the Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Final Prospectus
under selected captions with the disclosure requirements of Regulation
S-K and on the basis of limited procedures specified in such letter
nothing came to their attention as a result of the foregoing procedures
that caused them to believe that this information does not conform in
all material respects with the disclosure requirements of Items 301,
302, 402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of
the minute books of the Company and its subsidiaries since the date of
the latest audited financial statements included or incorporated by
reference in the Final Prospectus, inquires of officials of the Company
and its subsidiaries responsible for financial and accounting matters
and such other inquires and procedures as may be specified in such
letter, nothing came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Final Prospectus and/or included or
incorporated by reference in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Final Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the related
published rules and regulations, or (ii) any material modifications
should be made to the unaudited condensed consolidated statements
of income, consolidated balance sheets and consolidated statements
of cash flows included in the Final Prospectus or included in the
Company's Quarterly Reports on Form 10-Q incorporated by reference
in the Final Prospectus for them to be in conformity with generally
accepted accounting principles;
Annex II-2
(B) any other unaudited income statement data and balance
sheet items included in the Final Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included
or incorporated by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not
included in the Final Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause (A)
and any unaudited income statement data and balance sheet items
included in the Final Prospectus and referred to in Clause (B) were
not determined on a basis substantially consistent with the basis
for the audited financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the most
recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Final
Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the published
rules and regulations thereunder or the pro forma adjustments have
not been properly applied to the historical amounts in the
compilation of those statements;
(E) as of a specified date not more than three days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of convertible
securities, in each case which were outstanding on the date of the
latest balance sheet included or incorporated by reference in the
Final Prospectus) or any increase in the consolidated long-term
debt of the Company and its subsidiaries, or any decreases in
consolidated net current assets or stockholders' equity or other
items specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as compared
with amounts shown in the latest balance sheet included or
incorporated by reference in the Final Prospectus, except in each
case for changes, increases or decreases which the Final Prospectus
discloses have occurred or may occur or which are described in such
letter; and for the period from the date of the latest financial
statements included or incorporated by reference in the Final
Prospectus to the specified date referred to in Clause (E) there
were any decreases in consolidated net revenues or operating profit
or the total or per share amounts of
Annex II-3
consolidated net income or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period
of the preceding year and with any other period of corresponding
length specified by the Representatives, except in each case for
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Final Prospectus and
the limited procedures, inspection of minute books, inquires and
other procedures referred to in paragraphs (iii) and (vi) above,
they have carried out certain specified procedures, not
constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages
and financial information specified by the Representatives which
are derived from the general accounting records of the Company and
its subsidiaries, which appear in the Final Prospectus (excluding
documents incorporated by reference), or in Part II of, or in
exhibits and schedules to, the Registration Statement specified by
the Representatives or in documents incorporated by reference in
the Final Prospectus specified by the Representatives, and have
compared certain of such amounts, percentages and financial
information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
All references in this Annex II to the Final Prospectus shall be
deemed to refer to the Prospectus (including the documents incorporated
by reference therein) as defined in the Underwriting Agreement as of the
date of the letter delivered on the date of the Underwriting Agreement
for purposes of such letter and to the Final Prospectus as supplemented
(including the documents incorporated by reference therein) in relation
to the Securities for purposes of the letter delivered at the Closing
Date.
Annex II-4
Annex III
COMFORT LETTER DELIVERED ON THE CLOSING DATE
Annex III
Annex IV
DRAFT COMFORT LETTER
Annex IV
