Exhibit 1
$200,000,000
FERRO CORPORATION
9 1/8% SENIOR NOTES DUE JANUARY 1, 2009
UNDERWRITING AGREEMENT
----------------------
December 17, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION,
As Representative of the Several Underwriters,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Ferro Corporation, an Ohio corporation ("COMPANY"),
proposes, subject to the terms and conditions herein, to issue and sell
$200,000,000 principal amount of its 9 1/8% Senior Notes due January 1, 2009
("OFFERED Securities") as set forth below, all to be issued under an indenture,
dated as of March 25, 1998 ("Indenture"), between the Company and ▇.▇. ▇▇▇▇▇▇
Trust Company, National Association (successor-in-interest to Chase Manhattan
Trust Company, National Association), as Trustee. The Company hereby agrees with
the several Underwriters named in Schedule A hereto ("Underwriters") as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement (No. 33-63855), including a
prospectus, relating to certain securities to be issued from time to
time by the Company, including the Offered Securities, has been filed
with the Securities and Exchange Commission ("COMMISSION") and has
become effective. Such registration statement, as amended and
supplemented at the time of this Agreement, is hereinafter referred to
as the "REGISTRATION STATEMENT", and the prospectus included in such
Registration Statement, as supplemented to reflect the terms of the
Offered Securities and the terms of offering thereof, as most recently
filed with the Commission pursuant to and in accordance with Rule
424(b) ("RULE 424(B)") under the Securities Act of 1933 ("ACT"),
including all material incorporated by reference therein, is
hereinafter referred to as the "PROSPECTUS". No document has been or
will be prepared or distributed in reliance on Rule 434 under the Act.
(b) On the effective date of the Registration Statement, such
Registration Statement conformed in all material respects to the
requirements of the Act, the Trust Indenture Act of 1939 ("TRUST
INDENTURE ACT") and the rules and regulations of the Commission ("RULES
AND REGULATIONS") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and
on the date hereof, the Registration Statement and the Prospectus
conform, and on the Closing Date will conform, in all material respects
to the requirements of the Act, the Trust Indenture Act and the Rules
and Regulations, and neither of such documents include, nor on the
Closing Date will include, any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, except that
the foregoing does not apply to statements in or omissions from any of
such documents based upon written information furnished to the Company
by any Underwriter through Credit Suisse First Boston Corporation (the
"REPRESENTATIVE") specifically for use therein. The documents
incorporated or deemed to be incorporated by reference in either the
Registration Statement or the Prospectus at the time they were or
hereafter are filed with the Commission complied or will comply, as the
case may be, in all material respects to the requirements of the Act.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Ohio, with
power and authority (corporate and other) to own, lease and operate its
properties and conduct its business as described in the Prospectus; and
the Company is duly qualified to do business as a foreign corporation
in good standing in all other jurisdictions in which its ownership,
lease or operation of property or the conduct of its business requires
such qualification, except to the extent such failure to be so
qualified or be in good standing would not, individually or in the
aggregate, have a material adverse effect on the condition (financial
or other), business, properties or results of operations of the Company
and its subsidiaries taken as a whole ("MATERIAL ADVERSE EFFECT").
(d) Each subsidiary of the Company has been duly organized and
is existing and in good standing under the laws of the jurisdiction in
which it is chartered or organized, with power and authority (corporate
and/or other) to own, lease and operate its properties and conduct its
business as described in the Prospectus; and each subsidiary of the
Company is duly qualified to do business in good standing in all other
jurisdictions in which its ownership, lease or operation of property or
the conduct of its business requires such qualification, except to the
extent such failure to be so qualified or be in good standing would
not, individually or in the aggregate, have a Material Adverse Effect
or have an adverse effect on the performance by the Company of its
obligations under this Agreement or the consummation of the
transactions contemplated hereby.
(e) All of the issued and outstanding capital stock and
partnership interests, as applicable, of each subsidiary of the Company
has been duly authorized and validly issued and is fully-paid and
non-assessable, and the capital stock and partnership interests, as
applicable, of each subsidiary owned by the Company, directly or
through subsidiaries, is owned free and clear of any security
interests, claims, liens, encumbrances, pledges, mortgages or defects
of any kind.
(f) The Company has all requisite corporate power and
authority to authorize, execute, deliver and perform its obligations
under the Indenture, the Offered Securities and this Agreement and to
consummate the transactions contemplated hereby and thereby.
(g) The Indenture has been duly authorized, executed,
delivered and qualified under the Trust Indenture Act with respect to
the Offered Securities registered thereby; the Offered Securities have
been duly authorized; and, when the Offered Securities are delivered
and paid for pursuant to this Agreement on the Closing Date, (i) such
Offered Securities will have been duly executed, authenticated, issued
and delivered and will conform to the description thereof included in
the Prospectus, and (ii) the Indenture and such Offered Securities will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(h) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
for the consummation of the transactions contemplated by this Agreement
in connection with the issuance and sale of the Offered Securities by
the Company, except such as have been obtained and made under the Act
and the Trust Indenture Act and such as may be required under state
securities laws.
(i) Neither the execution, delivery and performance of the
Indenture and this Agreement, and the issuance and sale of the Offered
Securities and compliance with the terms and provisions thereof, nor
the consummation of any other of the transactions therein contemplated,
will, whether with or without the giving of notice or the passage of
time or both, conflict with, result in a breach or violation of any of
the terms and provisions of, or constitute a default under, or result
in a breach or violation of any of the terms and provisions of, or
result in the imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant
to, any statute, any rule, regulation or order of any governmental
agency or body or any court, domestic or foreign, having jurisdiction
over the Company or any subsidiary of the Company or any of their
properties, or any agreement or instrument to which the Company or any
subsidiary is a party or by which the Company or any subsidiary is
bound or to which any of the properties of the Company or any
subsidiary is subject, or the charter or by-laws of the Company or
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any subsidiary; and the Company has full power and authority to
authorize, issue and sell the Offered Securities as contemplated by
this Agreement.
(j) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(k) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and
all other properties and assets owned by them, in each case free and
clear from all mortgages, pledges, liens, security interests, claims,
restrictions, encumbrances and defects of any kind that would
materially affect the value thereof or materially interfere with the
use made or to be made thereof by them; except as disclosed in the
Prospectus, the Company and its subsidiaries hold any leased real or
personal property under valid and enforceable leases with no exceptions
that would materially interfere with the use made or to be made thereof
by them; and all tangible assets and properties of the Company and its
subsidiaries are in normal working order (subject to ordinary wear and
tear) and are adequate for the uses to which they are being put in the
ordinary course of business.
(l) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(m) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is threatened or
imminent that might have a Material Adverse Effect, and the Company is
not aware of any existing or imminent labor disturbance among the
employees of any of its or its subsidiaries' principal suppliers,
contractors or customers, that might have a Material Adverse Effect.
(n) Neither the Company nor any of its subsidiaries is in
violation or default (whether with or without the giving of notice or
passage of time or both) of (i) any provision of its charter or bylaws;
(ii) the terms of any indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or any of its
subsidiaries is a party that is required to be described in or filed as
an exhibit to the Registration Statement pursuant to Regulation S-K of
the Act (collectively, the "MATERIAL CONTRACTS"); (iii) other than any
Material Contracts, the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which it is
a party or bound or to which its property is subject; or (iv) any
statute, law, rule, regulation, judgment, order or decree applicable to
the Company or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or subsidiary or any of its
properties, as applicable, other than, in the case of clauses (iii) and
(iv) above only, such violations or defaults which, singly or in the
aggregate, would not have a Material Adverse Effect.
(o) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, such trademarks, trade names, domain
names, service marks, rights to inventions, know-how, patents,
copyrights, confidential information and other intellectual property
(collectively, "INTELLECTUAL PROPERTY RIGHTS") as are necessary to
conduct the business now operated by them. The Company and its
subsidiaries have not received any notice of infringement of or
conflict with asserted rights of others with respect to any
intellectual property rights that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect. Except as set forth in the
Prospectus and except for those matters that would not, individually or
in the aggregate, have a Material Adverse Effect, (i) there are no
rights of third parties to any such intellectual property rights,
except for rights granted to or from third parties under valid licenses
to which the Company or a subsidiary of the Company is a party; (ii) to
the Company's knowledge, there is no material infringement by third
parties of any such intellectual property rights; (iii) there is no
pending or, to the Company's knowledge, threatened action, suit,
proceeding or claim by others challenging the Company's rights in or to
or the validity or scope of any such
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intellectual property rights, and the Company is unaware of any facts
which would form a reasonable basis for any such claim; (iv) there is
no pending or, to the Company's knowledge, threatened action, suit,
proceeding or claim by others that the Company infringes or otherwise
violates any patent, trademark, copyright, trade secret or other
proprietary rights of others, and the Company is unaware of any other
fact which would form a reasonable basis for any such claim; (v) there
is no patent or published patent application which contains claims that
dominate or may dominate any intellectual property rights described in
the Prospectus as being owned by or licensed to the Company or that
interferes with the issued or pending claims of any such intellectual
property rights; and (vi) the Company is not aware of any prior art
references or prior public uses, sales, offers for sale or disclosures
which would invalidate the patents necessary to conduct the businesses
now operated by the Company and its subsidiaries or any conduct the
result of which could render such patents or any claim in respect
thereof invalid or unenforceable.
(p) Except as disclosed in the Prospectus, neither the Company
nor any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, "ENVIRONMENTAL LAWS"), has received notice of
any actual or potential liability for the investigation or remediation
of any disposal or release of hazardous or toxic substance or water
pollutants or contaminants, owns or operates any real property
contaminated with any substance that is subject to any environmental
laws, is liable for any off-site disposal or contamination pursuant to
any environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim
would individually or in the aggregate have a Material Adverse Effect;
and the Company is not aware of any pending investigation which might
lead to such a claim. The Company has reasonably concluded that any
costs and liabilities arising out of the effect of any environmental
laws on the business, operations and properties of the Company and its
subsidiaries (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with environmental laws, or any permit, license or approval, any
related constraints on operating activities and any potential
liabilities to third parties) would not, singly or in the aggregate,
have a Material Adverse Effect.
(q) In the ordinary course of its business, the Company
periodically reviews the effect of all applicable environmental laws on
the business, operations and properties of the Company and its
subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with environmental laws, or any permit,
license or approval, any related constraints on operating activities
and any potential liabilities to third parties); on the basis of such
review, the Company has reasonably concluded that such associated costs
and liabilities would not, singly or in the aggregate, have a Material
Adverse Effect, except as set forth in or contemplated in the
Prospectus (exclusive of any amendment or supplement thereto).
(r) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to
perform its obligations under the Indenture or this Agreement, or which
are otherwise material in the context of the sale of the Offered
Securities; and no such actions, suits or proceedings are threatened
or, to the Company's knowledge, contemplated.
(s) The financial statements of the Company, included in each
of the Registration Statement and the Prospectus present fairly the
financial position of the Company and its consolidated subsidiaries as
of the dates shown and their results of operations and cash flows for
the periods shown, and such financial statements have been prepared in
compliance with Regulation S-X of the Act and in conformity with the
generally accepted accounting principles in the United States applied
on a consistent basis; the assumptions used in preparing the pro forma
financial statements included in the Prospectus provide a reasonable
basis for presenting the significant effects directly attributable to
the transactions or events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, the pro forma
columns therein
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reflect the proper application of those adjustments to the
corresponding historical financial statement amounts; and the pro forma
financial statements included in the Prospectus comply as to form in
all material respects with the applicable accounting requirements of
Regulation S-X under the Act.
(t) The financial statements of the dmc2 businesses acquired
by the Company from OM Group, Inc. (collectively, the "ACQUIRED
BUSINESSES") included in the Prospectus present fairly the financial
position of the Acquired Businesses as of the dates shown and their
results of operations and cash flows for the periods shown, and such
financial statements have been prepared in compliance with Regulation
S-X of the Act and in conformity with the German commercial code and
accounting principles generally accepted in Germany on a consistent
basis.
(u) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the Prospectus, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(v) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940.
(w) The table under "Capitalization" in the Prospectus
(including the footnotes thereto) sets forth, as of its date, the
actual capitalization of the Company and pro forma capitalization of
the Company as adjusted to give effect to the issuance of the Offered
Securities and the application of the use of proceeds therefrom. Except
as set forth in such table, immediately following the Closing Date,
neither the Company nor any of its subsidiaries will have any
liabilities, absolute, accrued, contingent or otherwise other than (A)
liabilities that are reflected in the financial statements included in
the Prospectus (including the notes thereto), or (B) liabilities
incurred subsequent to the date thereof in the ordinary course of
business, consistent with past practice, that could not, singly or in
the aggregate, reasonably be expected to have a Material Adverse
Effect. All of the issued and outstanding shares of capital stock of
the Company and its subsidiaries have been duly authorized and validly
issued, are fully paid and non-assessable, are not subject to any
preemptive or similar rights and have been issued in compliance with or
in reliance upon an exemption from all applicable state and federal
securities laws.
(x) The Offered Securities rank and will rank on a parity and
ratably with all other unsecured and unsubordinated indebtedness of the
Company that is outstanding on the date hereof or that may be incurred
hereafter, including Senior Indebtedness (as defined in the Indenture),
and senior to all unsecured and subordinated indebtedness of the
Company that is outstanding on the date hereof or that may be incurred
hereafter, subject to bankruptcy laws or general equitable principles.
(y) KPMG LLP, who has certified financial statements of the
Company and its consolidated subsidiaries, including the financial
statements of the Acquired Businesses, and delivered their report with
respect to the audited consolidated financial statements and schedules
included in the Prospectus, are independent certified public
accountants with respect to the Company within the meaning of the Act
and the applicable published rules and regulations thereunder.
(z) There are no stamp or other issuance or transfer taxes or
duties or other similar fees or charges required to be paid in
connection with the execution and delivery of this Agreement or the
issuance or sale by the Company of the Offered Securities.
(aa) The Company and its subsidiaries have filed all foreign,
federal, state and local tax returns that are required to be filed or
has requested extensions thereof (except in any case in which the
failure so to file would not have a Material Adverse Effect, and have
paid all taxes required to be paid by them it and any other assessment,
fine or penalty levied against it, to the extent that any of the
foregoing is due and payable, except for any such assessment, fine or
penalty that is currently being contested in good faith and
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by appropriate proceedings and for which the Company has provided
adequate charges, accruals and reserves in accordance with generally
accepted accounting principles in the United States or as would not
have a Material Adverse Effect. There is no tax deficiency or actual or
proposed tax assessment that has been asserted against the Company that
would have, singly or in the aggregate, a Material Adverse Effect.
(bb) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; all policies of insurance and
fidelity or surety bonds insuring the Company or any subsidiaries or
their respective businesses, assets, employees, officers and directors
are in full force and effect; the Company and its subsidiaries are in
compliance with the terms of such policies and instruments in all
material respects; and there are no claims by the Company or any of its
subsidiaries under any such policy or instrument as to which any
insurance company is denying liability or defending under a reservation
of rights clause; neither the Company nor any subsidiary has been
refused any insurance coverage sought or applied for; and neither the
Company nor any subsidiary has any reason to believe that it will not
be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as
may be necessary to continue its business at a cost that would not have
a Material Adverse Effect, except as disclosed in the Prospectus.
(cc) No subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from
making any other distribution on subsidiary's capital stock, from
repaying to the Company any loans or advances to the subsidiary from
the Company or from transferring any of the subsidiary's property or
assets to the Company or any other subsidiary of the Company, except as
disclosed in the Prospectus.
(dd) The Company and each of its subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles in the United
States and to maintain asset accountability; (iii) access to assets is
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(ee) Each of the Company and its subsidiaries has fulfilled
its obligations, if any, under the minimum funding standards of ▇▇▇▇▇▇▇
▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Employee Retirement Income Security Act of
1974, as amended ("ERISA"), and the regulations and published
interpretations thereunder with respect to each "plan" (as defined in
Section 3(3) of ERISA and such regulations and published
interpretations) in which employees of the Company and its subsidiaries
are eligible to participate, and each such plan is in compliance in all
material respects with the presently applicable provisions of ERISA and
such regulations and published interpretations, except where the
failure to so comply could not, individually or in the aggregate,
reasonably be expected to have or result in a Material Adverse Effect.
The Company and its subsidiaries have not incurred any unpaid liability
to the Pension Benefit Guaranty Corporation (other than for the payment
of premiums in the ordinary course) and no condition exists or event or
transaction has occurred which could result in the Company and its
subsidiaries incurring any material liability, fine or penalty with
respect to any such plan under Title IV of ERISA.
(ff) Each foreign pension plan of the Company and its
subsidiaries has been maintained in substantial compliance with its
terms and with the requirements of any and all applicable laws,
statutes, rules, regulations and orders and has been maintained, where
required, in good standing with applicable regulatory authorities,
except where the failure to so comply would not reasonably be expected
to have a Material Adverse Effect. Neither the Company nor any of its
subsidiaries has incurred individually or in the aggregate any
obligation in connection with the termination of or withdrawal from any
foreign pension plan in an amount in excess of $500,000. The present
value of the accrued benefit liabilities (whether or not vested) under
each foreign pension plan of the Company and its subsidiaries,
determined as of the end of the Company's most recently ended fiscal
year on the basis of actuarial assumptions, did not exceed the
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current value of the assets of such foreign pension plan allocable to
such benefit liabilities by an amount in excess of $500,000.
(gg) The statistical and market-related data included in the
Prospectus are based on or derived from independent sources which the
Company believes to be reliable in all material respects or represent
the Company's good faith estimate.
(hh) The Company has not taken, directly or indirectly, any
action designed to or which has constituted or which might reasonably
be expected to cause or result, under the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT") or otherwise, in stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Offered Securities.
(ii) Except as described in the Registration Statement, no
holders of securities of the Company have rights to the registration of
such securities under the Registration Statement.
(jj) Neither the Company nor any agent acting on its behalf
has taken or will take any action that could reasonably be expected to
cause the transactions contemplated by this Agreement or the
Prospectus, and neither the execution, delivery and performance of this
Agreement, the application of the proceeds from the issuance and sale
of the Offered Securities nor the consummation of the transactions
contemplated by this Agreement will, violate Section 7 of the Exchange
Act or any regulation promulgated thereunder, including, without
limitation, Regulation U, T or X promulgated by the Board of Governors
of the Federal Reserve System, in each case, as in effect on the
Closing Date.
Any certificate signed by any officer of the Company or any of its
subsidiaries and delivered to the counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, at a purchase price of 97.977% of the principal amount
thereof, the respective principal amounts of Offered Securities set forth
opposite the names of the Underwriters in Schedule A hereto.
The Company will deliver against payment of the purchase price the
Offered Securities in the form of one or more permanent global securities in
definitive form (the "GLOBAL SECURITIES") deposited with the Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent global securities
will be held only in book-entry form through DTC, except in the limited
circumstances described in the Prospectus. Payment for the Offered Securities
shall be made by the Underwriters in Federal (same day) funds by official bank
check or checks or wire transfer to an account at a bank acceptable to the
Representative, drawn to the order of the Company at 12:00 P.M., (New York
time), on December 20, 2001, or at such other time not later than seven full
business days thereafter as the Representative and the Company determine, such
time being herein referred to as the "CLOSING DATE", against delivery to the
Trustee as custodian for DTC of the Global Securities representing all of the
Offered Securities. The Global Securities will be made available for checking at
the above office of Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP at least 24 hours prior to
the Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company. The Company agrees with the
several Underwriters that:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(2) (or, if applicable
and if consented to by the Representative, subparagraph (5)) not later
than the second business day following the execution and delivery of
this Agreement.
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(b) The Company will advise the Representative promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Representative a reasonable opportunity
to comment on any such proposed amendment or supplement; and the
Company will also advise the Representative promptly of the filing of
any such amendment or supplement and of the institution by the
Commission of any stop order proceedings in respect of the Registration
Statement or of any part thereof and will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company promptly will notify the Representative of such event and
will promptly prepare and file with the Commission, at its own expense,
an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Neither the
Representative's consent to, nor the Underwriters' delivery of, any
such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6 hereof.
(d) As soon as practicable, but not later than 16 months,
after the date of this Agreement, the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the date of the Company's
most recent Annual Report on Form 10-K filed with the Commission prior
to the date of such this Agreement, which will satisfy the provisions
of Section 11(a) of the Act.
(e) The Company will furnish to the Representative copies of
the preliminary prospectus supplement, the Prospectus and all
amendments and supplements to such documents, in each case as soon as
available and in such quantities as the Representative reasonably
requests. The Company will pay the expenses of printing and
distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the
Offered Securities for sale and the determination of their eligibility
for investment under the laws of such jurisdictions as the
Representative designates and will continue such qualifications in
effect so long as required for the distribution.
(g) During the period of five years hereafter, the Company
will furnish to the Representative and, upon request, to each of the
other Underwriters, as soon as practicable after the end of each fiscal
year, a copy of its annual report to stockholders for such year; and
the Company will furnish to the Representative (i) as soon as
available, a copy of each report and any definitive proxy statement of
the Company filed with the Commission under the Exchange Act or mailed
to stockholders, and (ii) from time to time, such other information
concerning the Company as the Representative may reasonably request.
(h) The Company will pay all expenses incidental to the
performance of its obligations under this Agreement and the Indenture,
including (i) the fees and expenses of the Trustee and its professional
advisers; (ii) all expenses in connection with the execution, issue,
authentication, packaging and initial delivery of the Offered
Securities and the preparation and printing of this Agreement, the
Offered Securities, the Indenture and any other document relating to
the issuance, offer, sale and delivery of the Offered Securities; (iii)
the transportation and other expenses incurred by or on behalf of any
representative of the Company in connection with presentations to
prospective purchasers of the Offered Securities in connection with the
issue of the Offered Securities; (iv) any filing fees or expenses
(including fees and disbursements of counsel) incurred in connection
with qualification of the Offered Securities for sale under the laws of
such jurisdictions as the Representative designates and the printing of
memoranda relating thereto; (v) any fees charged by investment rating
agencies for the rating of the Offered Securities; (vi) expenses
incurred in printing and distributing the Prospectus, all amendments or
supplements to any of them and any related preliminary prospectus
supplements (including any amendments and supplements thereto) to the
Underwriters; (vii) the fees and expenses of the Company's accountants
and other experts or advisors retained by the Company and the fees and
expenses of counsel (including local and special counsel) for the
Company; and (viii) all other
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costs and expenses incident to the performance by the Company of its
obligations hereunder. The Company will also pay or reimburse the
Underwriters (to the extent incurred by them) for all travel expenses
of the Underwriters and the Company's officers and employees and any
other expenses of the Underwriters and the Company in connection with
attending or hosting meetings with prospective purchasers of the
Offered Securities from the Underwriters.
(i) The Company will not offer, sell, contract to sell, pledge
or otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act relating to, debt
securities issued or guaranteed by the Company and having a maturity of
more than one year from the date of issue, or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing,
without prior written consent of the Representative for a period
beginning at the date of this Agreement and ending at the later of the
Closing Date or the lifting of trading restrictions by the
Representative.
(j) The Company will use the net proceeds received by it from
the sale of the Offered Securities solely in the manner specified in
the Prospectus under the caption "Use of Proceeds".
(k) The Company shall pay all stamp, documentary and transfer
taxes and other duties, if any, which may be imposed by the United
States or any political subdivision thereof or taxing authority thereof
or therein with respect to the issuance of the Offered Securities or
the sale thereof to the Underwriters.
(l) The Company will not take, directly or indirectly, any
action designed to or which has constituted or which might reasonably
be expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Offered Securities.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Offered Securities on
the Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the statements
of Company officers made pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions precedent:
(a) On or prior to the date of this Agreement, the
Representative shall have received a letter, dated the date of delivery
thereof, from each of KPMG L.L.P and KPMG Deutsche Treuhand -
Gesellschaft Aktiengesellschaft Wirtschaftspruefungsgesellschaft,
independent accountants to the Company confirming that they are
independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder of the type
described in AICPA Statement on Auditing Standards No. 72 and
containing the information and statements of the type ordinarily
included in accountants' "comfort letters" with respect to the
financial statements and certain financial information contained in the
Prospectus (which letters shall be substantially in the forms attached
hereto as schedules 6(A) and 6(B)).
(b) The Prospectus shall have been filed with the Commission
in accordance with the Rules and Regulations and Section 5(a) of this
Agreement. 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, to the knowledge of the
Company or any Underwriters, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as one enterprise which, in the
judgment of a majority in interest of the Underwriters including the
Representative, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Offered Securities; (ii) any downgrading in
the rating of any debt securities of the Company by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such
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rating); (iii) any change in U.S. or international financial, political
or economic conditions or currency exchange rates or exchange controls
as would, in the judgment of a majority in interest of the Underwriters
including the Representative, be likely to prejudice materially the
success of the proposed issue, sale or distribution of the Offered
Securities, whether in the primary market or in respect of dealings in
the secondary market; (iv) any material suspension or material
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Company
on any exchange or in the over-the-counter market; (v) any banking
moratorium declared by U.S. Federal or, New York or authorities; (vi)
any major disruption of settlements of securities or clearance services
in the United States or (vii) any attack on, outbreak or escalation of
hostilities or act of terrorism involving the United States, any
declaration of war by Congress or any other national or international
calamity or emergency if, in the judgment of a majority in interest of
the Underwriters including the Representative, the effect of any such
attack, outbreak, escalation, act, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Offered Securities.
(d) The Representative shall have received an opinion, dated
the Closing Date, of Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P., counsel for the
Company, to the effect that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
State of Ohio, with corporate power and authority to own,
lease and operate its properties and conduct its business as
described in the Prospectus, and is duly qualified to do
business as a foreign corporation in good standing in all
other jurisdictions in which its ownership, lease or operation
of property or the conduct of its business requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not, individually or in
the aggregate, have a Material Adverse Effect; and all issued
and outstanding capital stock of the Company has been duly
authorized and validly issued;
(ii) Each domestic subsidiary of the Company, which
shall be listed on a schedule to such opinion (each, a
"DOMESTIC SUBSIDIARY") has been duly incorporated or formed,
as applicable, and is an existing corporation or partnership,
as applicable, in good standing under the laws of the
jurisdiction of its formation, with power and authority
(corporate and/or other) to own, lease and operate its
properties and conduct its business as described in the
Prospectus; all of the issued and outstanding capital stock or
equity of each Domestic Subsidiary has been duly authorized
and validly issued and is non-assessable; and the capital
stock or equity of each Domestic Subsidiary owned by the
Company, directly or through subsidiaries, is owned free and
clear from any security interests, liens, encumbrances,
pledges, mortgages, claims, and defects of any kind;
(iii) The Indenture has been duly authorized,
executed and delivered and has been duly qualified under the
Trust Indenture Act; the Offered Securities delivered on the
Closing Date have been duly authorized, executed,
authenticated, issued and delivered; and the Indenture and the
Offered Securities delivered on the Closing Date constitute
valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles;
(iv) The Company is not and, after giving effect to
the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as defined in
the Investment Company Act of 1940;
(v) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required for the consummation of the transactions
contemplated by this Agreement, the Indenture and the Offered
Securities in connection with the issuance or sale of the
Offered Securities by the Company, except such as have been
obtained and made under the Act and the Trust Indenture Act
and such as may be required under state securities laws;
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(vi) To such counsel's knowledge, except as disclosed
in the Prospectus, there are no pending actions, suits or
proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
Material Adverse Effect, or would materially and adversely
affect the ability of the Company to perform its obligations
under the Indenture or this Agreement, or which are otherwise
material in the context of the sale of the Offered Securities;
and no such actions, suits or proceedings are, to such
counsel's knowledge, threatened or contemplated;
(vii) The execution, delivery and performance of the
Indenture and this Agreement and the issuance and sale of the
Offered Securities and compliance with the terms and
provisions thereof will not (whether with or without the
giving of notice or the passage of time or both) conflict
with, or result in a breach or violation of any of the terms
and provisions of, or constitute a default under, or result in
the imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its Domestic
Subsidiaries pursuant to (1) any statute, rule or regulation,
or (2) any order of any governmental agency or body or any
court having jurisdiction over the Company or any Domestic
Subsidiary or any of their properties of which such counsel is
aware after reasonable due inquiry, or (3) any Material
Contract to which the Company or any subsidiary of the Company
is a party or by which the Company or any subsidiary of the
Company is bound or to which any of the properties of the
Company or any subsidiary is subject, or (4) the charter or
by-laws of the Company or any Domestic Subsidiary; and the
Company has full power and authority to authorize, issue and
sell the Offered Securities as contemplated by this Agreement;
(viii) The Registration Statement is effective under
the Act, the Prospectus was filed with the Commission pursuant
to the subparagraph of Rule 424(b) specified in such opinion
on the date specified therein, and, to the best of the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any part
thereof has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the
Act, and the Registration Statement, as of its effective date,
and the Registration Statement and the Prospectus, as of the
date of this Agreement, and any amendment or supplement
thereto, as of its date, complied as to form in all material
respects with the requirements of the Act, the Trust Indenture
Act and the Rules and Regulations; each document filed
pursuant to the Exchange Act (other than the financial
statements and supporting schedules and other financial data
included or incorporated by reference therein, as to which no
opinion need be rendered) and incorporated or deemed to be
incorporated by reference in the Registration Statement or the
Prospectus complied when so filed as to form in all material
respects with the Exchange Act; such counsel have no reason to
believe that the Registration Statement, as of its effective
date, as of the date of this Agreement or as of the Closing
Date, or any amendment thereto, as of its date or as of the
Closing Date, contained any untrue statement of a material
fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus, as of the date of this
Agreement or as of such Closing Date, or any amendment or
supplement thereto, as of its date or as of the Closing Date,
contained any untrue statement of a material fact or omitted
to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; the descriptions in the
Registration Statement and Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are
accurate and fairly present the information required to be
shown; and such counsel do not know of any legal or
governmental proceedings required to be described in the
Prospectus which are not described as required or of any
contracts or documents of a character required to be described
in the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement which are not described
and filed as required; it being understood that such counsel
need express no opinion as to the financial statements or
other financial data contained in the Registration Statement
or the Prospectus;
(ix) This Agreement has been duly authorized,
executed and delivered by the Company;
-11-
(x) The Offered Securities and the Indenture conform
in all material respects to the descriptions thereof included
in the Prospectus;
(xi) Neither the Company nor any of its Domestic
Subsidiaries is in violation or default (whether with or
without the giving of notice or passage of time or both) of
(i) any provision of its charter or bylaws; (ii) the terms of
any of the Material Contracts, or (iii) to the knowledge of
such counsel after reasonable due inquiry, except as set forth
in the Prospectus, any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of
such subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or such
subsidiary or any of their properties, as applicable, other
than, in the case of clause (iii) above only, such violations
or defaults which, singly or in the aggregate, would not have
a Material Adverse Effect; and
(xii) Neither the consummation of the transactions
contemplated by the Underwriting Agreement or the Indenture,
nor the sale, issuance, execution or delivery of the Offered
Securities will violate Regulation T, U or X promulgated by
the Board of Governors of the Federal Reserve System, assuming
the proceeds of the sale of the Offered Securities are
utilized as described in the Prospectus.
(e) The Representative shall have received from ▇▇▇▇▇, ▇▇▇▇▇ &
▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities delivered on the Closing Date, the
Registration Statement, the Prospectus and other related matters as the
Representative may require, and the Company shall have furnished to
such counsel such documents as they request for the purpose of enabling
them to pass upon such matters. In rendering such opinion, ▇▇▇▇▇, ▇▇▇▇▇
& ▇▇▇▇▇ may rely as to the incorporation of the Company and all other
matters governed by Ohio law upon the opinion of Squire, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, L.L.P. referred to above.
(f) The Representative shall have received a certificate,
dated the Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of
the Company in this Agreement are true and correct, that the Company
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing
Date, that no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or are contemplated
by the Commission and that, subsequent to the date of the most recent
financial statements in the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole except as set forth in or contemplated by
the Prospectus or as described in such certificate.
(g) The Representative shall have received a letter, dated the
Closing Date, of KPMG L.L.P. which meets the requirements of subsection
(a) of this Section, except that the specified date referred to in such
subsection will be a date not more than three days prior to the Closing
Date for the purposes of this subsection.
(h) The Offered Securities shall be eligible for clearance and
settlement through The Depositary Trust Company.
(i) All proceedings taken by the Company in connection with
the issuance and sale of the Offered Securities as herein contemplated
shall be reasonably satisfactory in form and substance to the
Underwriters.
(j) On the Closing Date, the Offered Securities shall be rated
at least Baa3 by ▇▇▇▇▇'▇ and BBB- by S&P, and the Company shall have
delivered to the Underwriters a letter, dated the Closing Date, from
each such rating agency, or other evidence satisfactory to the
Underwriters, confirming that the Offered
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Securities have such ratings; and since the date hereof, 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 purposes 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.
(k) Subsequent to the date of the most recent financial
statements in the Prospectus (exclusive of any amendment or supplement
thereto after the date hereof), other than as described in such
Prospectus or contemplated hereby or thereby, neither the Company nor
any of its subsidiaries shall have incurred any liabilities or
obligations, direct or contingent not in the ordinary course of
business that are material to the Company and its subsidiaries, taken
as a whole, or entered into any transactions not in the ordinary course
of business that are material to the condition (financial or other),
business, properties, prospects, earnings or results of operations of
the Company, taken as a whole, and there shall not have been any
adverse change in the capital stock or long-term indebtedness of the
Company or any of its subsidiaries that is material to the condition
(financial or other), business, properties, prospects, earnings or
results of operations of the Company and its subsidiaries, taken as a
whole.
(l) Subsequent to the date of the most recent financial
statements in the Prospectus and except as stated therein (exclusive of
any amendment or supplement thereto after the date hereof), the conduct
of the business and operations of the Company shall not have been
interfered with by strike, fire, flood, hurricane, accident or other
calamity (whether or not insured) or by any court or governmental
action, order or decree, and the properties of the Company shall not
have sustained any loss or damage (whether or not insured) as a result
of any such occurrence, except any such interference, loss or damage
which would not, individually or in the aggregate, have a Material
Adverse Effect.
The Company will furnish the Representative with such conformed copies
of such opinions, certificates, letters and documents as the Representative
reasonably requests. The Representative may in its sole discretion waive on
behalf of the Underwriters compliance with any conditions to the obligations of
the Underwriters hereunder, whether in respect of the Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any, who controls such Underwriter within the meaning of either of
the Act or the Exchange Act against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact included in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus supplement, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter, for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representative specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the information described as such in subsection (b) below and provided, further,
that with respect to any untrue statement or alleged untrue statement in or
omission or alleged omission from any preliminary prospectus the indemnity
agreement contained in this subsection (a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased the Offered Securities concerned, to the extent that a
prospectus relating to such Offered Securities was required to be delivered by
such Underwriter under the Act in connection with such purchase and any such
loss, claim, damage or liability of such Underwriter results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person, a copy of
the Prospectus (exclusive of material incorporated by reference) if the Company
had previously furnished copies thereof to such Underwriter.
-13-
(b) Each Underwriter will severally and not jointly indemnify
and hold harmless the Company, its directors and officers and each
person, if any who controls the Company within the meaning of Section
15 of the Act, against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact included in any
Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by such Underwriter
through the Representative specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred, it
being understood and agreed that the only such information furnished by
any Underwriter consists of the following information in the Prospectus
furnished on behalf of each Underwriter: the information contained in
the fourth paragraph under the caption "Underwriting" of the
Prospectus; provided, however, that the Underwriters shall not be
liable for any losses, claims, damages or liabilities arising out of or
based upon the Company's failure to perform its obligations under
Section 5(a).
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than under
subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in
respect of which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such indemnified
party unless such settlement (i) includes an unconditional release of
such indemnified party from all liability on any claims that are the
subject matter of such action and (ii) does not include a statement as
to, or an admission of, fault, culpability or a failure to act by or on
behalf of an indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and the Underwriters on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and
the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities
as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total
net proceeds from the offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions
received by the Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or
the Underwriters and the parties' relative intent, knowledge,
-14-
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the
first sentence of this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any action or claim which
is the subject of this subsection (d). Notwithstanding the provisions
of this subsection (d), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be
in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each director of the Company, to each officer of the Company who has
signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on the Closing
Date and the aggregate principal amount of Offered Securities that such
defaulting Underwriter or Underwriters agreed but failed to purchase does not
exceed 10% of the total principal amount of Offered Securities that the
Underwriters are obligated to purchase on the Closing Date, the Representative
may make arrangements satisfactory to the Company for the purchase of such
Offered Securities by other persons, including any of the Underwriters, but if
no such arrangements are made by the Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Offered Securities that such defaulting
Underwriters agreed but failed to purchase on the Closing Date. If any
Underwriter or Underwriters so default and the aggregate principal amount of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total principal amount of Offered Securities that the Underwriters
are obligated to purchase on the Closing Date and arrangements satisfactory to
the Representative and the Company for the purchase of such Offered Securities
by other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter
or the Company, except as provided in Section 9. As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If this Agreement is terminated pursuant
to Section 8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company and the Underwriters pursuant to Section 7 shall
remain in effect, and if any Offered Securities have been purchased hereunder
the representations and warranties in Section 2 and all obligations under
Section 5 shall also remain in effect. If the purchase of the Offered Securities
by the Underwriters is not consummated for any reason other than solely because
of the termination of this Agreement pursuant to Section 8 or the occurrence of
any event specified in clause (iii) through (vii) of Section 6(c), the Company
will reimburse the Underwriters on demand for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or faxed and confirmed to
the Representative at, c/o Credit Suisse First Boston Corporation,
-15-
Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention: Transactions
Advisory Group (fax: ▇▇▇-▇▇▇-▇▇▇▇), or, if sent to the Company, will be mailed,
delivered or faxed and confirmed to it at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, (fax: (▇▇▇) ▇▇▇-▇▇▇▇) , Attention: General Counsel; provided, however,
that any notice to an Underwriter pursuant to Section 7 will be mailed,
delivered or faxed and confirmed to such Underwriter.
11. 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, and no other
person will have any right or obligation hereunder.
12. Representation of Underwriters. The Representative will act for the
several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representative will be binding upon all the
Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
-16-
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement between the
Company and the several Underwriters in accordance with its terms.
Very truly yours,
FERRO CORPORATION
BY:
--------------------------------
NAME:
TITLE:
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
BY:
-----------------------------------
NAME:
TITLE:
Acting on behalf of itself and as
the Representative of the
several Underwriters
Underwriting Agreement
SCHEDULE A
UNDERWRITER PRINCIPAL AMOUNT OF
----------- OFFERED SECURITIES
------------------
Credit Suisse First Boston Corporation.................. $114,000,000
NatCity Investments, Inc................................ $76,000,000
Tokyo-Mitsubishi International plc...................... $10,000,000
Total........................ $200,000,000
============
SCHEDULE 6A
SCHEDULE 6B
