EXHIBIT 1.1
2,812,069 SHARES
ALLIANT TECHSYSTEMS INC.
COMMON STOCK (PAR VALUE $.01 PER SHARE)
UNDERWRITING AGREEMENT
November __, 1997
November __, 1997
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
SBC Warburg Dillon Read Inc.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
Swiss Bank Corporation
c/o Morgan ▇▇▇▇▇▇▇ & Co. International Limited
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
England
Dear Sirs and Mesdames:
Hercules Incorporated, a Delaware corporation (the "SELLING SHAREHOLDER"),
proposes to sell to the several Underwriters (as defined below) 2,812,069 shares
of the Common Stock (par value $.01 per share) (the "SHARES") of Alliant
Techsystems Inc., a Delaware corporation (the "COMPANY").
It is understood that, subject to the conditions hereinafter stated, 2,249,655
Shares (the "U.S. SHARES") will be sold to the several U.S. Underwriters named
in Schedule I hereto (the "U.S. UNDERWRITERS") in connection with the offering
and sale of such U.S. Shares in the United States and Canada to United States
and Canadian Persons (as such terms are defined in the Agreement Between U.S.
and International Underwriters of even date herewith), and 562,414 Shares (the
"INTERNATIONAL SHARES") will be sold to the several International Underwriters
named in Schedule II hereto (the "INTERNATIONAL UNDERWRITERS") in connection
with the offering and sale of such International Shares outside the United
States and Canada to persons other than United States and Canadian Persons.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and SBC Warburg Dillon Read Inc. shall act as
representatives (the "U.S. REPRESENTATIVES") of the several U.S. Underwriters,
and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited and Swiss Bank Corporation,
acting through its division, SBC Warburg Dillon Read, shall act as
representatives (the "INTERNATIONAL REPRESENTATIVES") of the several
International Underwriters. The U.S. Underwriters and the International
Underwriters are
hereinafter collectively referred to as the Underwriters. The outstanding
shares of Common Stock (par value $.01 per share) of the Company are hereinafter
referred to as the "COMMON STOCK."
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement relating to the Shares. The registration
statement contains two forms of prospectuses to be used in connection with the
offering and sale of the Shares: the U.S. prospectus, to be used in connection
with the offering and sale of Shares in the United States and Canada to United
States and Canadian Persons, and the international prospectus, to be used in
connection with the offering and sale of Shares outside the United States and
Canada to persons other than United States and Canadian Persons. The
international prospectus is identical to the U.S. prospectus except for the
outside front cover page. The registration statement as amended at the time it
becomes effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933, as amended (the "SECURITIES ACT"), is hereinafter
referred to as the "REGISTRATION STATEMENT"; the U.S. prospectus and the
international prospectus in the respective forms first used to confirm sales of
Shares are hereinafter collectively referred to as the "PROSPECTUS." Any
reference to the term Registration Statement, preliminary prospectus or
Prospectus shall include the documents incorporated therein by reference. If
the Company has filed an abbreviated registration statement to register
additional shares of Common Stock pursuant to Rule 462(b) under the Securities
Act (the "RULE 462 REGISTRATION STATEMENT"), then any reference herein to the
term "Registration Statement" shall be deemed to include such Rule 462
Registration Statement. The terms "SUPPLEMENT" and "AMENDMENT" or "AMEND" as
used in this Agreement shall include all documents subsequently filed by the
Company with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), that are deemed to be incorporated by reference in
the Prospectus.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or, to the Company's
knowledge, threatened by the Commission.
(b) (i)Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder, (ii)
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the Registration Statement, when it became effective, did not contain and,
as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading,(ii) the Registration Statement and the Prospectus comply and,
as amended or supplemented, if applicable, will comply in all material
respects with the Securities Act and the applicable rules and regulations
of the Commission thereunder and (iii) the Prospectus does not contain and,
as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to statements or
omissions in the Registration Statement or the Prospectus based upon (i)
information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein or (ii)
information relating to the Selling Shareholder furnished to the Company in
writing by or on behalf of the Selling Shareholder expressly for use
therein.
(c) The Company has been duly incorporated, 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 its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated, 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 its property and to conduct its business and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole; all of the issued
shares of capital stock of each subsidiary of the Company have been duly
and validly authorized and issued, are fully paid and non-assessable and
are owned directly by the Company, free and clear of all liens,
encumbrances, equities and claims, except that such shares are pledged to
the lenders
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under the Amended and Restated Credit Agreement dated as of March 15, 1995
among the Company, the lenders referred to therein, ▇▇▇▇▇▇ Guaranty Trust
Company of New York, as documentation agent, and the Chase Manhattan Bank, as
administrative agent, as amended and restated as of November 14, 1996,
and as amended by Amendment No. 1 thereto dated as of November 7, 1997
(the "CREDIT AGREEMENT").
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus.
(g) All outstanding shares of Common Stock (including the
Shares) have been duly authorized and are validly issued, fully paid
and non-assessable. The rights ("Rights") to purchase the Company's
Series A Junior Participating Preferred Stock to which holders of the
Shares are entitled under the Company's Restated Certificate of
Incorporation and the Rights Agreement dated as of September 28, 1990
(the First Amendment thereof, dated as of August 4, 1992, having been
rescinded by Rescission Agreement dated as of May 26, 1993) between
the Company and ChaseMellon Shareholder Services, L.L.C., as amended
by the Second Amendment thereto dated as of October 28, 1994, have
been duly authorized and validly issued.
(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not contravene any provision of applicable law or the certificate
of incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries, or any
judgment, order or decree by which the Company or any subsidiary is
bound, of any governmental body, agency or court having jurisdiction
over the Company or any subsidiary, except for such contraventions
that singly or in the aggregate, would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole, and
which do not materially adversely effect the Company's ability to
perform its obligations under this Agreement, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, except such as have
been obtained and as may be required by the securities or Blue Sky
laws of the various states and foreign jurisdictions in connection
with the offer and sale of the Shares.
(i) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
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condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(j) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party
or to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or
any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(k) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities
Act and the applicable rules and regulations of the Commission
thereunder.
(l) The Company is not an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
(m) The Company and its subsidiaries (i) are in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"),(ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii)
are in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(n) To the Company's knowledge, there are no costs or
liabilities associated with Environmental Laws (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)
which would, singly or in the
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aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(o) There are no contracts, agreements or understandings between
the Company and any person granting such person the right to require
the Company to file a registration statement under the Securities Act
with respect to any securities of the Company or to require the
Company to include such securities with the Shares registered pursuant
to the Registration Statement, except the Stockholders Agreement dated
March 15, 1995, as amended June 19, 1997, between the Company and the
Selling Shareholder.
(p) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus,(i) the
Company and its subsidiaries have not incurred any material liability
or obligation, direct or contingent, nor entered into any material
transaction not in the ordinary course of business;(ii) the Company
has not purchased any of its outstanding capital stock, nor declared,
paid or otherwise made any dividend or distribution of any kind on its
capital stock other than ordinary and customary dividends; and (iii)
there has not been any material change in the capital stock,
short-term debt or long-term debt of the Company and its consolidated
subsidiaries, except in each case as described in or contemplated by
the Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement and for normally scheduled
repayments of debt).
(q) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title
to all personal property owned by them which is material to the
business of the Company and its subsidiaries, in each case free and
clear of all liens, encumbrances and defects, except that
substantially all of the real and personal property of the Company
is subject to liens under the Credit Agreement and except for such
liens, encumbrances and defects as do not materially affect the value
of such property and do not interfere with the use made and proposed
to be made of such property by the Company and its subsidiaries; and
any real property and buildings held under lease by the Company and
its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do
not interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries, in each
case except as described in or contemplated by the Prospectus.
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(r) The Company and its subsidiaries own or possess, have made
application for, or can acquire on reasonable terms, all material
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 and trade names currently employed by them
in connection with the business now operated by them, and, except as
disclosed in the Prospectus, neither the Company nor any of its
subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any of the foregoing
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(s) No material labor dispute with the employees of the Company
or any of its subsidiaries exists, except as described in or
contemplated by the Prospectus, or, to the knowledge of the Company,
is imminent; and the Company is not aware of any existing or
threatened labor disturbance by the employees of any of its principal
suppliers, manufacturers or contractors that would have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(t) Except as described in or contemplated by the Prospectus,
the Company and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct their respective
businesses, except where such failure to possess any certificate,
authorization or permit, would not singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as
a whole; and neither the Company nor any such subsidiary has received
any notice of proceedings relating to the revocation or modification
of any such certificate, authorization or permit, which, if the
subject of an unfavorable decision, ruling or finding, would
singly or in the aggregate, have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLING SHAREHOLDER. The
Selling Shareholder represents and warrants to and agrees with each of the
Underwriters that:
(a) This Agreement has been duly authorized, executed and
delivered by the Selling Shareholder.
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(b) The execution and delivery by the Selling Shareholder of,
and the performance by the Selling Shareholder of its obligations
under, this Agreement will not contravene any provision of applicable
law, or the certificate of incorporation or by-laws of the Selling
Shareholder, or any agreement or other instrument binding upon the
Selling Shareholder or any judgment, order or decree by which the
Selling Shareholder is bound of any governmental body, agency or
court having jurisdiction over the Selling Shareholder, except
for such contraventions that, singly or in the aggregate,would not
have a material adverse effect on the Selling Shareholder and its
subsidiaries, taken as a whole, and which do not materially adversely
effect the Selling Shareholder's ability to perform its obligations
under this Agreement, and no consent, approval, authorization or order
of, or qualification with, any governmental body or agency is required
for the performance by the Selling Shareholder of its obligations
under this Agreement, except such as have been obtained and may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares.
(c) The Selling Shareholder has, and on the Closing Date (as
defined in Section 5) will have, valid title to the Shares and the
corporate power and authority to enter into this Agreement, and to
sell, transfer and deliver the Shares.
(d) Delivery of the Shares to be sold will pass title to such
Shares free and clear of any security interests, claims, liens,
equities and other encumbrances.
(e) (i)The Registration Statement, as of the date when it became
effective, did not contain and, as amended or supplemented, if
applicable, as of the date of such amendment or supplement, will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and (ii) the Prospectus, as of its
date, does not contain and, as amended or supplemented, if applicable,
as of the date of such amendment or supplement, will not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that
the representations and warranties set forth in this paragraph 2(e)
shall apply only to information relating to the Selling Shareholder
furnished in writing by or on behalf of the Selling Shareholder
expressly for use in the Registration Statement, the
8
Prospectus, any preliminary prospectus or any amendment or supplement
thereto.
3. AGREEMENTS TO SELL AND PURCHASE. The Selling Shareholder hereby
agrees to sell to the several Underwriters, and each Underwriter, upon the basis
of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees, severally and not jointly, to purchase
from the Selling Shareholder the respective number of Shares set forth in
Schedules I and II hereto opposite its name at U.S.$_____ a share ("PURCHASE
PRICE").
Each of the Company and the Selling Shareholder hereby agrees that,
without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated on
behalf of the Underwriters, it will not, during the period ending 90 days
after the date of the Prospectus, (i) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, lend or otherwise
transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common
Stock or (ii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership
of the Common Stock, whether any such transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to
(A) the sale to the Underwriters of the Shares hereunder, (B) the issuance by
the Company of shares of Common Stock upon the exercise of an option or
warrant or the conversion of a security outstanding on the date hereof of
which the Underwriters have been advised in writing, (C) the grant of the
Company of shares of Common Stock or options to purchase its Common Stock
under employee benefit arrangements or (D) the sales by the Selling
Shareholder and purchases by the Company of Common Stock pursuant to the
Agreement dated October 24, 1997 between the Company and the Selling
Shareholder.
4. TERMS OF PUBLIC OFFERING. The Company and the Selling Shareholder
are advised by you that the Underwriters propose to make a public offering of
their respective portions of the Shares as soon after the Registration Statement
and this Agreement have become effective as in your judgment is advisable. The
Company and the Selling Shareholder are further advised by you that the Shares
are to be offered to the public initially at U.S.$_____ a share (the "PUBLIC
OFFERING PRICE") and to certain dealers selected by you at a price that
represents a concession not in excess of U.S.$____ a share under the Public
Offering Price, and that any Underwriter may allow, and such dealers may
reallow, a concession, not in excess of U.S.$____ a share, to any Underwriter or
to certain other dealers.
5. PAYMENT AND DELIVERY. Payment for the Shares shall be made to the
Selling Shareholder in Federal or other funds immediately available in New York
9
City against delivery of such Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on ____________, 1997, or at
such other time on the same or such other date, not later than _________, 1997,
as shall be designated in writing by you. The time and date of such payment are
hereinafter referred to as the "CLOSING DATE."
Certificates for the Shares shall be in definitive form and registered
in such names and in such denominations as you shall request in writing not
later than one full business day prior to the Closing Date. The certificates
evidencing the Shares shall be delivered to you on the Closing Date for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
6. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The obligations of
the Selling Shareholder to sell the Shares to the Underwriters and the several
obligations of the Underwriters to purchase and pay for the Shares on the
Closing Date are subject to the condition that the Registration Statement shall
have become effective not later than 4:00 p.m. (New York City time) on the date
hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole,
from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement) that, in your judgment, is material and adverse and
that makes it, in your
10
judgment, impracticable to market the Shares on the terms and in
the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing
Date a certificate, dated the Closing Date and signed by an
executive officer of the Company, to the effect set forth in
Section 6(a)(i) above and to the effect that the representations
and warranties of the Company contained in this Agreement are
true and correct as of the Closing Date and that the Company has
complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on
or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings
threatened.
(c) The Underwriters shall have received on the Closing
Date an opinion of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, outside counsel
for the Company, dated the Closing Date, to the effect that:
(i) the Company is duly incorporated, validly existing
and in good standing under the laws of the State of
Delaware and has the corporate power and authority to
own its property and to conduct its business as described
in the Prospectus;
(ii) the authorized capital stock of the Company
conforms as to legal matters to the description thereof
contained in the Prospectus;
(iii) the outstanding shares of Common Stock
(including the Shares) have been duly authorized and are
validly issued, fully paid and non-assessable;
(iv) this Agreement has been duly authorized, executed
and delivered by the Company;
(v) neither the execution and delivery by the Company
of this Agreement, nor the performance by the Company of its
obligations under this Agreement will result in the
violation of any provision of the General Corporation Law of
the State of Delaware (the "DGCL"), United States law or
the laws, rules and regulations of the State of New
York which in such counsel's experience are normally
applicable to the transactions of the type
11
contemplated by this Agreement (collectively,
"APPLICABLE LAW") or the certificate of incorporation or
by-laws of the Company;
(vi) based upon a review of Applicable Law, but without
any investigation concerning any other laws, rules or
regulations, no consent, approval, authorization or order
of, or qualification with, any executive, legislative,
judicial, administrative or regulatory body of the United
States, the State of New York or any similar body
responsible for the administration of the DGCL is required
for the performance by the Company of its obligations under
this Agreement, except such as have been obtained and as may
be required to be obtained under the securities or Blue Sky
laws of the various states or foreign jurisdictions in
connection with the offer and sale of the Shares by the
Underwriters;
(vii) the statements in the Prospectus under the
captions "Certain U.S. Federal Tax Considerations for
Non-U.S. Holders of Common Stock," "Description of Capital
Stock" and "Underwriters" and in Part II of the Registration
Statement in Item 15, in each case insofar as such
statements constitute summaries of the legal matters or
documents referred to therein, fairly summarize such legal
matters or documents and are accurate in all material
respects;
(viii) such counsel does not know of any documents
of a character required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to
the Registration Statement that are not described or filed
as required;
(ix) the Rights have been duly authorized and validly
issued; and
(x) (A)such counsel is of the opinion that the
Registration Statement and Prospectus (except for the
operating statistics, financial statements, financial
schedules and other financial data as to which such counsel
need not express any opinion) comply as to form in all
material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder and (B)
no facts have come to the attention of such counsel that
cause such counsel to believe that (except for the operating
statistics, financial statements, financial schedules and
other financial data as to which such counsel need not
express any belief) the Registration Statement at the time
the
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Registration Statement became effective contained any untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus
(with the foregoing exceptions) as of its date and the
Closing Date contained or contains any untrue statement of a
material fact or omitted or omits 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.
(d) The Underwriters shall have received on the Closing
Date an opinion of ▇▇▇▇▇ ▇▇▇▇▇▇, Vice President and General
Counsel of the Company, dated the Closing Date, to the effect
that:
(i) the Company is duly incorporated, validly existing
and in good standing under the laws of the State of Delaware
and has the corporate power and authority to own its
property and to conduct its business as described in the
Prospectus;
(ii) the Company is duly qualified to do business as a
foreign corporation and is in good standing in each
jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such
qualification, except to the extent that the failure to be
so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries,
taken as a whole;
(iii) each subsidiary of the Company is duly
incorporated, validly existing and in good standing under
the laws of the jurisdiction of its incorporation and has
the corporate power and authority to own its property and to
conduct its business as currently conducted;
(iv) each subsidiary of the Company is duly qualified
to do business as a foreign corporation and is in good
standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries,
taken as a whole;
(v) all of the outstanding shares of capital stock of
each of the subsidiaries of the Company are duly authorized
and are
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validly issued, fully paid and non-assessable and are owned
directly by the Company free and clear of all liens,
encumbrances, equities or claims, except that all of the
outstanding shares are pledged to the lenders under the
Credit Agreement;
(vi) such counsel does not know of any legal or
government proceedings pending or threatened to which the
Company or any of its subsidiaries is subject that are
required to be described in the Registration Statement or
the Prospectus that are not so described;
(vii) the Company and its subsidiaries (A) are in
compliance with any and all applicable Environmental
Laws,(B) have received all permits, licenses or other
approvals required of them under applicable Environmental
Laws to conduct their respective businesses and (C)are in
compliance with all terms and conditions of any permit,
license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals
would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as
a whole;
(viii) neither the execution and delivery by the
Company of this Agreement, nor the performance by the
Company of its obligations thereunder, will: (A) result in
the violation of any judgment, order or decree binding
upon the Company or any of its subsidiaries known by such
counsel of any governmental body, agency or court having
jurisdiction over the Company or any of its subsidiaries; or
(B) conflict with or result in a breach or violation of any
terms or provisions of, or constitute a default under,
(1) the Restated Certificate of Incorporation or By-Laws of
the Company, or (2) any agreement or other instrument
binding upon the Company or any of its subsidiaries;
(ix) the statements contained (A) in the Company's
Annual Report on Form 10-K for the year ended March 31, 1997
under Part I, Item 3: Legal Proceedings, (B) in the
Company's Annual Report to Shareholders for the year ended
March 31, 1997 under "Management's Discussion and
Analysis--Environmental
14
Matters" and "--Litigation", and (C) in the Prospectus under
the caption "Risk Factors--Litigation Risk", in each case
insofar as such statements purport to constitute summaries
of the legal matters, proceedings or documents referred to
therein, fairly summarize such legal matters, proceedings
and documents and are accurate in all material respects;
(x) such counsel is of the opinion that each document
filed pursuant to the Exchange Act prior to the Closing Date
and incorporated by reference into the Registration
Statement and Prospectus (except for the operating
statistics, financial statements, financial schedules, and
other financial data included therein as to which such
counsel need not express any opinion) at the time they were
filed complied as to form in all material respects with the
requirements of the Exchange Act and the rules and
regulations of the Commission thereunder; and
(xi) such counsel does not know of any documents of a
character required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the
Registration Statement that are not described and filed as
required.
(e) The Underwriters shall have received on the Closing
Date an opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Assistant General Counsel of
the Selling Shareholder, dated the Closing Date, to the effect
that:
(i) this Agreement has been duly authorized, executed
and delivered by the Selling Shareholder;
(ii) the execution and delivery by the Selling
Shareholder of, and the performance by the Selling
Shareholder of its obligations under, this Agreement will
not contravene any provision of Delaware law or United
States federal law which, in such counsel's experience,
is normally applicable to transactions of the type
contemplated by this Agreement, or the certificate of
incorporation or by-laws of the Selling Shareholder, or,
to the best of such counsel's knowledge, any agreement or
other instrument binding upon the Selling Shareholder or,
to the best of such counsel's knowledge, any judgment,
order or decree of any governmental body, agency or court
having jurisdiction over the Selling Shareholder known by
such counsel after due inquiry to be applicable to
the Selling Shareholder, except for such contraventions
that singly or in the aggregate, would not have a material
adverse effect on the selling Shareholder and its
subsidiaries, taken as a whole, and which do not materially
adversely effect the selling Shareholder's ability to
perform its obligations under this Agreement, and to the
best of such counsel's knowledge no consent, approval,
authorization or order of, or qualification with, any
governmental body or agency is
15
required for the performance by the Selling Shareholder of
its obligations under this Agreement, except those that have
been obtained and are in full force and effect and such as
may be required by the securities or Blue Sky laws of the
various states in connection with offer and sale of the
Shares;
(iii) the Selling Shareholder has the corporate power
and authority, to enter into this Agreement and consummate
the transactions contemplated hereby; and
(iv) upon delivery to the Underwriters at the Closing
in the State of New York of certificates representing the
Shares, duly endorsed to the Underwriters or in blank or
accompanied by stock powers duly endorsed to the
Underwriters or in blank by the Selling Shareholder,
assuming that the Underwriters acquire their interest in the
Shares in good faith and without notice of any adverse
claims (within the meaning of Section 8-302 of the New York
Uniform Commercial Code), the Underwriters will acquire all
of the Selling Shareholder's rights in the Shares free of
any adverse claims (within the meaning on Section 8-302 of
the New York Uniform Commercial Code).
(f) The Underwriters shall have received on the Closing
Date an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Underwriters, dated the Closing Date, covering the matters
referred to in Sections 6(c)(iv), 6(c)(vii) (but only as to the
statements in the Prospectus under "Underwriters") and 6(c)(x)
above.
With respect to Section 6(c)(x) above, ▇▇▇▇▇, Day, ▇▇▇▇▇▇ &
▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ may state that their opinion and
belief are based upon their participation in the preparation of
the Registration Statement and Prospectus and any amendments or
supplements thereto (other than the documents incorporated by
reference) and review and discussion of the contents thereof
(including documents incorporated therein by reference), but are
without independent check or verification except as specified.
The opinions of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ described in Sections 6(c), 6(d) and 6(e)
above shall be rendered to the Underwriters at the request of
the Company or the Selling Shareholder, as the case may be,
and shall so state therein.
16
(g) The Underwriters shall have received, on each of the
date hereof and the Closing Date, a letter dated the date hereof
or the Closing Date, as the case may be, in form and substance
satisfactory to the Underwriters, from Deloitte & Touche,
independent public accountants, containing statements and
information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the
Registration Statement and the Prospectus; PROVIDED that the
letter delivered on the Closing Date shall use a "cut-off date"
not earlier than the date hereof.
(h) The "lock-up" agreements, each substantially in the
form of Exhibit A hereto, between you and the executive
officers and directors of the Company relating to sales and
certain other dispositions of shares of Common Stock or certain
other securities, delivered to you on or before the date hereof,
shall be in full force and effect on the Closing Date.
7. COVENANTS OF THE COMPANY. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants
with each Underwriter as follows:
(a) To furnish to you, without charge, four signed copies
of the Registration Statement (including exhibits thereto and
documents incorporated therein by reference) and for delivery to
each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto but including documents
incorporated therein by reference) and to furnish to you in New
York City, without charge, prior to 3:00 p.m. New York City time
on the business day next succeeding the date of this Agreement
and during the period mentioned in Section 7(c) below, as many
copies of the Prospectus and any supplements and amendments
thereto or to the Registration Statement as you may reasonably
request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each
such proposed amendment or supplement and not to file any such
proposed amendment or supplement to which you reasonably object,
and to file with the Commission within the applicable period
specified in Rule 424(b) under the Securities Act any prospectus
required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the
public offering of the Shares as in the reasonable opinion of
counsel for the Underwriters the Prospectus is required by law
to be delivered in connection with sales by
17
an Underwriter or dealer, any event shall occur or condition
exist as a result of which it is necessary to amend or supplement
the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the reasonable opinion of
counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with applicable law,
forthwith to prepare, file with the Commission and furnish,
at its own expense, to the Underwriters and to the dealers
(whose names and addresses you will furnish to the Company)
to which Shares may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either
amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale
under the securities or Blue Sky laws of such jurisdictions as
you shall reasonably request.
(e) To make generally available to the Company's security
holders and to you as soon as practicable an earning statement
covering the twelve-month period ending December 31, 1998 that
satisfies the provisions of Section 11(a) of the Securities Act
and the rules and regulations of the Commission thereunder.
(f) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay
or cause to be paid all expenses incident to the performance of
its obligations under this Agreement, including:(i) the fees,
disbursements and expenses of the Company's counsel and the
Company's accountants in connection with the registration and
delivery of the Shares under the Securities Act and all other
fees or expenses in connection with the preparation and filing of
the Registration Statement, any preliminary prospectus, the
Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and
the mailing and delivering of copies thereof to the Underwriters
and dealers, in the quantities herein above specified,(ii) all
costs and expenses related to the transfer and delivery of the
Shares to the Underwriters, including any transfer or other taxes
payable thereon,(iii) the cost of printing or producing any Blue
Sky or Legal Investment memorandum in connection with the offer
and sale of the Shares under state securities laws and all
expenses in connection with the qualification of the Shares for
offer and sale under state securities laws
18
as provided in Section 7(d) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters
in connection with such qualification and in connection with the
Blue Sky or Legal Investment memorandum; provided that
the costs sought to be reimbursed by the Company under this
clause (iii) shall not exceed $1,500, (iv) all filing
fees and the reasonable fees and disbursements of counsel to
the Underwriters incurred in connection with the review and
qualification of the offering of the Shares by the National
Association of Securities Dealers, Inc.,(v) all fees,
disbursements and expenses of counsel to the Selling Shareholder
in connection with the registration and delivery of the Shares
under the Securities Act,(vi) the cost of printing certificates
representing the Shares,(vii) the costs and charges of any
transfer agent, registrar or depositary,(viii) the costs and
expenses of the Company relating to investor presentations on
any "road show" undertaken in connection with the marketing of
the offering of the Shares, including, without limitation,
expenses associated with the production of road show slides
and graphics, fees and expenses of any consultants engaged
in connection with the road show presentations with the prior
approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection
with the road show,(ix) all expenses in connection with any offer
and sale of the shares outside the United States, including
filing fees and the reasonable fees and disbursements of counsel
for the Underwriters in connection with offers and sales outside
the United States, and (x) all other costs and expenses incident
to the performance of the obligations of the Company hereunder
for which provision is not otherwise made in this Section. It is
understood, however, that except as provided in this Section,
Section 8 entitled "Indemnity and Contribution", and the last
paragraph of Section 10 below, the Underwriters will pay all of
their costs and expenses, including fees and disbursements of
their counsel, stock transfer taxes payable on resale of any of
the Shares by them and any advertising expenses connected with
any offers they may make.
The provisions of this Section shall not supersede or otherwise affect
any agreement that the Selling Shareholder and the Company may otherwise have
for the allocation of such expenses among themselves.
8. INDEMNITY AND CONTRIBUTION.(a) The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses
19
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus relating thereto or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through
you expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto.
(b) The Selling Shareholder agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus relating thereto or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact to be stated therein or necessary to make the
statements therein not misleading, but only with reference to information
relating to such Selling Shareholder furnished in writing by or on behalf of
such Selling Shareholder expressly for use in the Registration Statement, any
preliminary prospectus relating thereto, the Prospectus or any amendments or
supplements thereto.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, the Selling Shareholder, the directors and officers
of the Company who sign the Registration Statement and each person, if any, who
controls the Company or the Selling Shareholder within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus
relating thereto or the Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto), or caused by any
20
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, but
only with reference to information relating to such Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 8(a), 8(b) or 8(c), such person (the "INDEMNIFIED
PARTY") shall promptly notify the person against whom such indemnity may be
sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (i) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Underwriters and all persons, if any, who
control any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, (ii) the fees and expenses of
more than one separate firm (in addition to any local counsel) for the Company,
its directors, its officers who sign the Registration Statement and each person,
if any, who controls the Company within the meaning of either such Section and
(iii) the fees and expenses of more than one separate firm (in addition to any
local counsel) for the Selling Shareholder and all persons, if any, who control
the Selling Shareholder within the meaning of either such Section, and that all
such fees and expenses shall be reimbursed as they are incurred. In the case of
any such separate firm for the Underwriters and such control persons of any
Underwriters, such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated. In the case of any such separate firm for the Company, and such
directors, officers and control persons of the Company, such firm shall be
designated in writing by the Company. In the case of any such separate firm for
the Selling Shareholder and such control persons of the Selling Shareholder,
such firm shall be designated in writing by the Selling Shareholder. The
indemnifying
21
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 60 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding 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 includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(e) To the extent the indemnification provided for in Section 8(a), 8(b)
or 8(c) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the Shares
or (ii) if the allocation provided by clause 8(e)(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 8(e)(i) above but also the relative
fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Selling Shareholder and the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Shares
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of the Shares (before deducting expenses) received by the
Selling Shareholder and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus, bear to the aggregate Public Offering Price of the
Shares. The relative fault of the Company and the Selling Shareholder on the
one hand and the Underwriters on the other hand shall be determined by reference
to, among other
22
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 Selling Shareholder or by the Underwriters and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 8 are several in proportion
to the respective number of Shares they have purchased hereunder, and not joint.
(f) The Company, the Selling Shareholder and the Underwriters agree that it
would not be just or equitable if contribution pursuant to this Section 8 were
determined by PRO RATA allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in Section 8(e). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 8 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(g) The indemnity and contribution provisions contained in this Section 8
and the representations, warranties and other statements of the Company and the
Selling Shareholders contained in this Agreement shall remain operative and in
full force and effect regardless of (i) any termination of this Agreement,
(ii)any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter, the Selling Shareholder or any person controlling
the Selling Shareholder, or the Company, its officers or directors or any person
controlling the Company and (iii)acceptance of and payment for any of the
Shares.
(h) The provisions of this Section 8 shall not supersede or otherwise
affect any agreement that the Selling Shareholder and the Company may
23
otherwise have entered into, including, without limitation, any agreement
providing for the allocation of indemnification among themselves.
9. TERMINATION. This Agreement shall be subject to termination by notice
given by you to the Company and the Selling Shareholder, if (a) after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by, as
the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade,(ii) trading of any securities of the Company shall have been suspended
on any exchange or in any over-the-counter market,(iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in your judgment, is material and adverse and (b) in
the case of any of the events specified in clauses 9(a)(i) through 9(a)(iv),
such event, singly or together with any other such event, makes it, in your
judgment, impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus.
10. EFFECTIVENESS; DEFAULTING UNDERWRITERS. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto. If,
on the Closing Date, any one or more of the Underwriters shall fail or refuse
to purchase Shares that it has or they have agreed to purchase hereunder on
such date, and the aggregate number of Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not
more than one-tenth of the aggregate number of the Shares to be purchased on
such date, the other Underwriters shall be obligated severally in the
proportions that the number of Shares set forth opposite their respective
names in Schedule I or Schedule II bears to the aggregate number of Shares
set forth opposite the names of all such non-defaulting Underwriters, or in
such other proportions as you may specify, to purchase the Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; PROVIDED that in no event shall the number of Shares
that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 10 by an amount in excess of one-ninth of
such number of Shares without the written consent of such Underwriter. If, on
the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Shares and the aggregate number of Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Shares to be
purchased, and arrangements satisfactory to you and the Selling Shareholder
for the purchase of such Shares are not made within 36 hours after
24
such default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Selling Shareholder. In any such case
either you or the Selling Shareholder shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company or the Selling
Shareholder to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company or the Selling Shareholder shall be
unable to perform its obligations under this Agreement, the party that has
failed or refused to comply with the terms or fulfill any condition of this
Agreement or that was unable to perform its obligations, as the case may be,
will reimburse the Underwriters or such Underwriters as have so terminated this
Agreement with respect to themselves, severally, for all out-of-pocket expenses
(including the fees and disbursements of their counsel) reasonably incurred by
such Underwriters in connection with this Agreement or the offering contemplated
hereunder.
11. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
13. HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
ALLIANT TECHSYSTEMS INC.
By:_________________________________
Name:
Title:
25
HERCULES INCORPORATED
By:_________________________________
Name:
Title:
Accepted as of the date hereof
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
SBC WARBURG DILLON READ INC.
Acting severally on behalf of themselves and
the several U.S. Underwriters named in
Schedule I hereto.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By:_________________________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL LIMITED
SWISS BANK CORPORATION
Acting severally on behalf of themselves and the
several International Underwriters named in
Schedule II hereto.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
By:_________________________________
Name:
Title:
26
SCHEDULE I
U.S. UNDERWRITERS
NUMBER OF U.S. SHARES
UNDERWRITER TO BE PURCHASED
_____________________________________________ ________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated..............
SBC Warburg Dillon Read Inc....................
[NAMES OF OTHER U.S. UNDERWRITERS].............
___________
Total U.S. Shares......................... 2,249,655
___________
___________
I-1
SCHEDULE II
INTERNATIONAL UNDERWRITERS
NUMBER OF U.S. SHARES
UNDERWRITER TO BE PURCHASED
_____________________________________________ ________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited.......
Swiss Bank Corporation, acting through its
division, SBC Wardburg ▇▇▇▇▇▇ Read..............
[NAMES OF OTHER INTERNATIONAL CO-MANAGER]........
___________
Total International Shares................... 562,414
___________
II-1
EXHIBIT A
[FORM OF LOCK-UP LETTER]
____________, 1997
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
SBC Warburg Dillon Read Inc.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
Swiss Bank Corporation
c/o Morgan ▇▇▇▇▇▇▇ & Co. International Limited
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
England
Dear Sirs and Mesdames:
The undersigned understands that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ("▇▇▇▇▇▇
▇▇▇▇▇▇▇") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited ("MSIL") propose to
enter into an Underwriting Agreement (the "UNDERWRITING AGREEMENT") with
Hercules Incorporated, a Delaware corporation (the "SELLING SHAREHOLDER"), and
Alliant Techsystems Inc., a Delaware corporation (the "COMPANY"), providing for
the public offering (the "PUBLIC OFFERING") by the several Underwriters,
including ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and MSIL (the "UNDERWRITERS") of 2,812, 069 shares (the
"SHARES") of the Common Stock, par value $.01 per share, of the Company (the
"COMMON STOCK").
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
(for so long as he/she remains in the capacity of officer or director) hereby
agrees that, without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of
the Underwriters, she/he will not, during the period commencing on the date
hereof and ending 90 days after the date of the final prospectus relating to the
Public Offering (the "PROSPECTUS"), (1) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any
A-1
option, right or warrant to purchase, lend, or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock, or (2) enter into any swap
or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (a) the sale of any Shares to the Underwriters
pursuant to the Underwriting Agreement or (b) transactions relating to shares of
Common Stock or other securities acquired in open market transactions after the
completion of the Public Offering. In addition, the undersigned agrees that,
without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the
Underwriters, he/she will not, during the period commencing on the date hereof
and ending 90 days after the date of the Prospectus, make any demand for or
exercise any right with respect to, the registration of any shares of Common
Stock or any security convertible into or exercisable or exchangeable for Common
Stock.
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company, the Selling Shareholder and the Underwriters.
Very truly yours,
_________________________________
(Name)
_________________________________
(Address)
A-2
