▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Products Co.
UNDERWRITING AGREEMENT
New York, New York
To the Representatives named in Schedule I
hereto of the Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Products Co., a Delaware
corporation (the "Company"), proposes to sell to the
underwriters named in Schedule II hereto (the
"Underwriters"), for whom you (the "Representatives") are
acting as representatives, debt securities (the "Debt
Securities") of the Company to be unconditionally guaranteed
on either a senior or subordinated basis, as applicable,
(the "Guarantee") by ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Corporation, a
Delaware corporation (the "Guarantor"). The terms of such
sales, pursuant to this Agreement, are described in
Schedule I hereto. The Debt Securities and the Guarantees
to be issued or sold pursuant to this Agreement as set forth
in Schedule I hereto shall be referred to herein as the
"Securities". If the firm or firms listed in Schedule II
hereto include only the firm or firms listed in Schedule I
hereto, then the terms "Underwriters" and "Representatives",
as used herein, shall each be deemed to refer to such firm
or firms.
1. Representations and Warranties. The Company
and the Guarantor, jointly and severally, represent and
warrant to, and agree with, each Underwriter as set forth
below in this Section 1. Certain terms used in this Section
1 are defined in paragraph (c) hereof.
(a) If the offering of the Securities is a
Delayed Offering (as specified in Schedule I hereto),
paragraph (i) below is applicable and, if the offering
of the Securities is a Non-Delayed Offering (as so
specified), paragraph (ii) below is applicable.
(i) The Company and the Guarantor meet
the requirements for use of Form S-3 under
the Securities Act of 1933 (the "Act") and
have filed with the Securities and Exchange
Commission (the "Commission") a registration
statement (the file number of which is set
forth in Schedule I hereto) on such Form,
including a basic prospectus, for
2
registration under the Act of the offering
and sale of the Securities. The Company and
the Guarantor may have filed one or more
amendments thereto, and may have used a
Preliminary Final Prospectus, each of which
has previously been furnished to you. Such
registration statement, as so amended, has
become effective. The offering of the
Securities is a Delayed Offering and,
although the Basic Prospectus may not include
all the information with respect to the
Securities and the offering thereof required
by the Act and the rules thereunder to be
included in the Final Prospectus, the Basic
Prospectus is responsive to all the
disclosure requirements of the Act and the
rules and regulations thereunder as of the
Effective Date. The Company and the
Guarantor will next file with the Commission
pursuant to Rules 415, 424(b)(2) or (5) or
434 or a combination thereof a final
supplement to the form of prospectus included
in such registration statement relating to
the Securities and the offering thereof. As
filed, such final prospectus supplement shall
include all required information with respect
to the Securities and the offering thereof
and, except to the extent the Representatives
shall agree in writing to a modification,
shall be in all substantive respects in the
form furnished to you prior to the Execution
Time or, to the extent not completed at the
Execution Time, shall contain only such
specific additional information and other
changes (beyond that contained in the Basic
Prospectus and any Preliminary Final
Prospectus) as the Company has advised you,
prior to the Execution Time, will be included
or made therein. If the Rule 434 Delivery
Alternative is used, the Company and the
Guarantor will also file the Rule 434 Term
Sheet in accordance with Rule 434. As filed,
such Rule 434 Term Sheet shall contain all
the information required by Rule 434, and
except to the extent the Representatives
shall agree in writing to a modification,
shall be in all substantive respects in the
form furnished to you prior to the Execution
Time or, to the extent not completed at the
Execution Time, shall contain only such
specific additional information and other
changes (beyond that contained in the latest
Preliminary Prospectus) as the Company has
advised you, prior to the Execution Time,
will be included or made therein. Upon your
request, but not without your agreement, the
Company and the Guarantor will also file a
Rule 462(b) Registration Statement in
accordance with Rule 462(b).
3
(ii) The Company and the Guarantor meet
the requirements for use of Form S-3 under
the Act and have filed with the Commission a
registration statement (the file number of
which is set forth in Schedule I hereto) on
such Form, including a basic prospectus, for
registration under the Act of the offering
and sale of the Securities. The Company and
the Guarantor may have filed one or more
amendments thereto, including a Preliminary
Final Prospectus, each of which has
previously been furnished to you. The
Company and the Guarantor will next file with
the Commission either (x) a final prospectus
supplement relating to the Securities in
accordance with Rules 430A and 424(b)(1) or
(4) and/or 434, or (y) prior to the
effectiveness of such registration statement,
an amendment to such registration statement,
including the form of final prospectus
supplement. In the case of clause (x), the
Company and the Guarantor have included in
such registration statement, as amended at
the Effective Date, all information (other
than Rule 430A Information and Rule 434
Information) required by the Act and the
rules thereunder to be included in the Final
Prospectus with respect to the Securities and
the offering thereof. As filed, such final
prospectus supplement or such amendment and
form of final prospectus supplement shall
contain all Rule 430A Information, together
with all other such required information,
with respect to the Securities and the
offering thereof and, except to the extent
the Representatives shall agree in writing to
a modification, shall be in all substantive
respects in the form furnished to you prior
to the Execution Time or, to the extent not
completed at the Execution Time, shall
contain only such specific additional
information and other changes (beyond that
contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company
has advised you, prior to the Execution Time,
will be included or made therein. If the
Rule 434 Delivery Alternative is used, the
Company and the Guarantor will also file the
Rule 434 Term Sheet in accordance with
Rule 434. As filed, such Rule 434 Term Sheet
shall contain all the information required by
Rule 434, and except to the extent the
Representatives shall agree in writing to a
modification, shall be in all substantive
respects in the form furnished to you prior
to the Execution Time or, to the extent not
completed at the Execution Time, shall
contain only such specific additional
information and other
4
changes (beyond that contained in the
latest Preliminary Prospectus) as the
Company has advised you, prior to the
Execution Time, will be included or made
therein. Upon your request, but not
without your agreement, the Company and
the Guarantor will also file a Rule 462(b)
Registration Statement in accordance with
Rule 462(b).
(b) On the Effective Date, the Registration
Statement did or will, and when the Final Prospectus
and any Rule 434 term sheet is first filed (if
required) in accordance with Rule 424(b) and on the
Closing Date, the Final Prospectus (and any supplement
thereto) will, comply in all material respects with the
applicable requirements of the Act, the Securities
Exchange Act of 1934 (the "Exchange Act") (with respect
to documents incorporated by reference in the
Registration Statement) and the Trust Indenture Act of
1939 (the "Trust Indenture Act") and the respective
rules thereunder; on the Effective Date, the
Registration Statement did not or will not contain any
untrue statement of a material fact or omit to state
any material fact required to be stated therein or
necessary in order to make the statements therein not
misleading; on the Effective Date and on the Closing
Date the Indenture, if applicable, did or will comply
in all material respects with the requirements of the
Trust Indenture Act and the rules thereunder; and, on
the Effective Date, the Final Prospectus, if not filed
pursuant to Rule 424(b), did not or will not, or on the
date of any filing pursuant to Rule 424(b) or Rule 434
and on the Closing Date, the Final Prospectus (together
with any supplement thereto) will not, include any
untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that
the Company and the Guarantor make no representations
or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the
Trust Indenture Act of the Trustee or (ii) the
information contained in or omitted from the
Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity
with information furnished in writing to the Company by
or on behalf of any Underwriter through the
Representatives specifically for inclusion in the
Registration Statement or the Final Prospectus (or any
supplement thereto).
(c) If the Securities are to be listed on any
securities exchange, authorization therefor has been
given, subject to official notice of issuance and
evidence of satisfactory distribution, or the Company
and the Guarantor are filing or have filed a
preliminary listing application and all required
supporting
5
documents with respect to the Securities with such
securities exchange and have no reason to believe
that the Securities will not be authorized for
listing, subject to official notice of issuance and
evidence of satisfactory distribution.
(d) The terms which follow, when used in this
Agreement, shall have the meanings indicated. The term
"Effective Date" shall mean each date that the
Registration Statement, any post-effective amendment or
amendments thereto or any Rule 462(b) Registration
Statement became or become effective and each date
after the date hereof on which a document incorporated
by reference in the Registration Statement is filed.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties
hereto. "Basic Prospectus" shall mean the prospectus
referred to in paragraph (a) above contained in the
Registration Statement at the Effective Date including,
in the case of a Non-Delayed Offering, any Preliminary
Final Prospectus. "Preliminary Final Prospectus" shall
mean any preliminary prospectus supplement to the Basic
Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the
Final Prospectus. "Final Prospectus" shall mean the
prospectus supplement relating to the Securities that
is first filed pursuant to Rule 424(b) and any term
sheet pursuant to Rule 434 after the Execution Time,
together with the Basic Prospectus or, if, in the case
of a Non-Delayed Offering, no filing pursuant to Rule
424(b) is required, shall mean the form of final
prospectus relating to the Securities, including the
Basic Prospectus, included in the Registration
Statement at the Effective Date. If the Rule 434
Delivery Alternative is used, such term shall also
include the Basic Prospectus and the Rule 434 Term
Sheet, taken together. "Registration Statement" shall
mean the registration statement referred to in
paragraph (a) above, including incorporated documents,
exhibits and financial statements, as amended at the
Execution Time (or, if not effective at the Execution
Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto
or any Rule 462(b) Registration Statement becomes
effective prior to the Closing Date (as hereinafter
defined), shall also mean such registration statement
as so amended. Such term shall include any Rule 430A
Information and Rule 434 Information deemed to be
included therein at the Effective Date as provided by
Rule 430A and Rule 434, respectively. "Rule 415",
"Rule 424", "Rule 430A", "Rule 434", "Rule 462(b)" and
"Regulation S-K" refer to such rules or regulation
under the Act. "Rule 430A Information" means
information with respect to the Securities and the
offering thereof permitted to be omitted from the
Registration Statement when it becomes effective
pursuant to Rule 430A. "Rule 434 Delivery Alternative"
shall mean the delivery alternative permitted by
Rule 434. "Rule 434 Information" shall mean any
information to be
6
included in a Rule 434 Term Sheet. "Rule 434 Term
Sheet" shall mean the term sheet or abbreviated term
sheet delivered by the Underwriters to investors and
filed by the Company and the Guarantor with the
Commission pursuant to Rule 434. "Rule 462(b)
Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant
to Rule 462(b) relating to the offering covered by
the initial Registration Statement (file number ).
Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents
incorporated by reference therein pursuant to Item
12 of Form S-3 which were filed under the Exchange
Act on or before the Effective Date of the
Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment"
or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the filing of any
document under the Exchange Act after the Effective
Date of the Registration Statement or the issue date
of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may
be, deemed to be incorporated therein by reference.
A "Non-Delayed Offering" shall mean an offering of
securities which is intended to commence promptly
after the effective date of a registration
statement, with the result that, pursuant to Rules
415 and 430A, all information (other than Rule 430A
Information) with respect to the securities so
offered must be included in such registration
statement at the effective date thereof. A "Delayed
Offering" shall mean an offering of securities
pursuant to Rule 415 which does not commence
promptly after the effective date of a registration
statement, with the result that only information
required pursuant to Rule 415 need be included in
such registration statement at the effective date
thereof with respect to the securities so offered.
Whether the offering of the Securities is a
Non-Delayed Offering or a Delayed Offering shall be
set forth in Schedule I hereto.
2. Purchase and Sale. (a) Subject to the terms
and conditions and in reliance upon the representations and
warranties herein set forth, the Company agrees to sell to
each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase
price set forth in Schedule I hereto, the principal amount
of Debt Securities set forth opposite such Underwriter's
name in Schedule II hereto, except that if Schedule I hereto
provides for the sale of such Debt Securities pursuant to
delayed delivery arrangements, the respective principal
amount of such Debt Securities to be purchased by the
Underwriters shall be as set forth in Schedule II hereto
less the respective amount of Contract Securities determined
as
7
provided below. Securities to be purchased by the
Underwriters are herein sometimes called the
"Underwriters' Securities" and Securities to be purchased
pursuant to Delayed Delivery Contracts as hereinafter
provided are herein called "Contract Securities".
(b) If so provided in Schedule I hereto, the
Underwriters are authorized to solicit offers to purchase
Debt Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts"),
substantially in the form of Schedule III hereto but with
such changes therein as the Company may authorize or
approve. The Underwriters will endeavor to make such
arrangements and, as compensation therefor, the Company will
pay to the Representatives, for the account of the
Underwriters, on the Closing Date, the percentage set forth
in Schedule I hereto of the principal amount of the Debt
Securities for which such Delayed Delivery Contracts are
made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings
banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. The
Company and the Guarantor will enter into Delayed Delivery
Contracts in all cases where such sales of Contract
Securities arranged by the Underwriters have been approved
by the Company but, except as the Company may otherwise
agree, each such Delayed Delivery Contract must be for not
less than the minimum principal amount set forth in Schedule
I hereto and the aggregate principal amount set forth in
Schedule I hereto and the aggregate principle amount of
Contract Securities may not exceed the maximum aggregate
principal amount set forth in Schedule I hereto. The
Underwriters will not have any responsibility in respect of
the validity or performance of Delayed Delivery Contracts.
The principal amount of Debt Securities to be purchased by
each Underwriter as set forth in Schedule II hereto shall be
reduced by an amount which shall bear the same proportion to
the total principal amount of Contract Securities as the
principal amount of Debt Securities set forth opposite the
name of such Underwriter bears to the aggregate principal
amount set forth in Schedule II hereto, except to the extent
that you determine that such reduction shall be otherwise
than in such proportion and so advise the Company in
writing; provided, however, that the total principal amount
of Debt Securities to be purchased by all Underwriters shall
be the aggregate principal amount set forth in Schedule II
hereto less the aggregate principal amount of Contract
Securities.
3. Delivery and Payment. Delivery of and payment
for the Underwriters' Securities shall be made on the date
and at the time specified in Schedule I hereto (or such
later date not later than five business days after such
specified date as the Representatives shall designate),
which date and time may be postponed by agreement between
the Representatives and the Company or as provided in
Section 8 hereof (such date and time of delivery and payment
for the Underwriters'
8
Securities being herein called the "Closing Date").
Delivery of the Underwriters' Securities shall be made to
the Representatives for the respective accounts of the
several Underwriters against payment by the several
Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by
certified or official bank check or checks drawn on or by
a New York Clearing House bank and payable in next day
funds or as otherwise may be agreed as set forth on
Schedule I hereto. Delivery of the Underwriters'
Securities shall be made at such location as the
Representatives shall reasonably designate at least one
business day in advance of the Closing Date and payment
for the Debt Securities shall be made at the office
specified in Schedule I hereto. Certificates for the
Underwriters' Securities shall be registered in such
names and in such denominations as the Representatives
may request not less than three full business days in
advance of the Closing Date.
The Company and the Guarantor agree to have the
Underwriters' Securities available for inspection, checking
and packaging by the Representatives in New York, New York,
not later than 1:00 PM on the business day prior to the
Closing Date.
4. Agreements. The Company and the Guarantor,
jointly and severally, agree with the several Underwriters
that:
(a) The Company and the Guarantor will use their
best efforts to cause the Registration Statement, if
not effective at the Execution Time, and any amendment
thereto, to become effective. Prior to the termination
of the offering of the Securities, the Company and the
Guarantor will not file any amendment to the
Registration Statement or supplement (including the
Final Prospectus or any Preliminary Final Prospectus)
to the Basic Prospectus unless the Company and the
Guarantor have furnished you a copy for your review
prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, the Company and the
Guarantor will cause the Final Prospectus, properly
completed, and any supplement thereto to be filed with
the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will
provide evidence satisfactory to the Representatives of
such timely filing. The Company and the Guarantor will
promptly advise the Representatives (i) when the
Registration Statement, if not effective at the
Execution Time, and any amendment thereto, shall have
become effective, (ii) when the Final Prospectus, and
any supplement thereto, shall have been filed with the
Commission pursuant to Rule 424(b), (iii) when, prior
to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been
filed or become effective, (iv) of any request by the
Commission at
9
any time when a prospectus relating to the
Securities is required to be delivered under the Act
for any amendment of the Registration Statement or
supplement to the Final Prospectus or for any
additional information, (v) of the issuance by the
Commission at any time when a prospectus relating to
the Securities is required to be delivered under the
Act of any stop order suspending the effectiveness
of the Registration Statement or the institution or
threatened institution of any proceeding for that
purpose and (vi) of the receipt by the Company or
the Guarantor of any notification with respect to
the suspension of the qualification of the
Securities for sale in any jurisdiction or the
initiation or threatened initiation of any
proceeding for such purpose. The Company and the
Guarantor will use their best efforts to prevent the
issuance of any such stop order and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) At any time when a prospectus relating to the
Securities is required to be delivered under the Act,
if any event occurs as a result of which the Final
Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state
any material fact necessary to make the statements
therein in the light of the circumstances under which
they were made not misleading, or if it shall be
necessary to amend the Registration Statement or
supplement the Final Prospectus to comply with the Act
or the Exchange Act or the respective rules thereunder,
the Company and the Guarantor promptly will (i) prepare
and file with the Commission, subject to the second
sentence of paragraph (a) of this Section 4, an
amendment or supplement which will correct such
statement or omission or effect such compliance and
(ii) supply any supplemented Prospectus to you in such
quantities as you may reasonably request.
(c) As soon as practicable, but not later than
the Availability Date, the Company and the Guarantor
will make generally available to its security holders
and to the Representatives an earnings statement or
statements of the Guarantor and its subsidiaries which
will satisfy the provisions of Section 11(a) of the Act
and Rule 158 under the Act. For purposes of the
preceding sentence, "Availability Date" means the 45th
day after the end of the fourth fiscal quarter
following the fiscal quarter that includes the
Effective Date, except that, if such fourth fiscal
quarter is the last quarter of the Guarantor's fiscal
year, "Availability Date" means the 90th day after the
end of such fourth fiscal quarter.
(d) The Company and the Guarantor will furnish to
the Representatives and counsel for the Underwriters,
without charge, copies of the Registration
10
Statement (including exhibits thereto) and, so long
as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, as many copies of
any Preliminary Final Prospectus and the Final
Prospectus and any supplement thereto as the
Representatives may reasonably request. The Company
and the Guarantor will pay the expenses of printing
or other production of all documents relating to the
offering.
(e) The Company and the Guarantor will arrange
for the qualification of the Securities offered by the
Company and the Guarantor for sale under the laws of
such jurisdictions as the Representatives may
designate, will maintain such qualifications in effect
so long as required for the distribution of the
Securities (except that in no event will the Company or
the Guarantor be required in connection therewith to
qualify as a foreign corporation or to execute a
general consent to service of process), will arrange
for the determination of the legality of the Securities
for purchase by institutional investors, and will pay
the fee of the National Association of Securities
Dealers, Inc., in connection with its review, if any,
of the offering.
(f) The Company and the Guarantor confirm as of
the date hereof that they are in compliance with all
provisions of Section 1 of Laws of Florida, Chapter 92-
198, An Act Relating to Disclosure of Doing Business
with Cuba, and the Company and the Guarantor further
agree that if they commence engaging in business with
the government of Cuba or with any person or affiliate
located in Cuba after the date the Registration
Statement becomes or has become effective with the
Commission or with the Florida Department of Banking
and Finance (the "Department"), whichever date is
later, or if the information reported in the
Prospectus, if any, concerning the Company's or the
Guarantor's business with Cuba or with any person or
affiliate located in Cuba changes in any material way,
the Company will provide the Department notice of such
business or change, as appropriate, in a form
acceptable to the Department.
(g) The Company and the Guarantor also agree to
comply with such other covenants as may be set forth on
Schedule I hereto.
5. Conditions to the Obligations of the
Underwriters. The obligations of the Underwriters to
purchase the Underwriters' Securities shall be subject to
the accuracy of the representations and warranties on the
part of the Company and the Guarantor contained herein as of
the Execution Time and the Closing Date, to the accuracy of
the statements of the Company and the Guarantor made in any
certificates
11
pursuant to the provisions hereof, to the performance by
the Company and the Guarantor of their obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become
effective prior to the Execution Time, unless the
Representatives agree in writing to a later time, the
Registration Statement will become effective not later
than (i) 6:00 PM New York City time, on the date of
determination of the public offering price, if such
determination occurred at or prior to 3:00 PM New York
City time on such date or (ii) 12:00 Noon on the
business day following the day on which the public
offering price was determined, if such determination
occurred after 3:00 PM New York City time on such date;
if filing of the Final Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the Final
Prospectus, and any such supplement, shall have been
filed in the manner and within the time period required
by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall
have been instituted or threatened.
(b) (1) The Company and the Guarantor shall have
furnished to the Representatives the opinion of
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., Executive Vice President,
General Counsel and Secretary of the Guarantor, dated
the Closing Date and to the effect that:
(i) each of the Company, the Guarantor and
each of their significant subsidiaries has been
duly incorporated and is validly existing and in
good standing under the laws of the jurisdiction
in which it is chartered or organized, with full
corporate power and authority to own its
properties and conduct its business as described
in the Final Prospectus;
(ii) each of the Company and the Guarantor
is duly qualified to do business as a foreign
corporation and in good standing under the laws of
each jurisdiction which requires such
qualification wherein it owns or leases material
properties or conducts material business and where
its failure to so qualify would have a material
adverse effect on either the Company or the
Guarantor;
(iii) all the outstanding shares of capital
stock of the Company, the Guarantor and each of
their significant subsidiaries have been duly and
validly authorized and issued and are fully paid
and nonassessable, and all outstanding shares of
capital stock of each of the subsidiaries of the
Company and the Guarantor are owned by the Company
or the
12
Guarantor, as applicable, either directly
or through wholly owned subsidiaries free and
clear of all liens, encumbrances, equities or
claims other than those arising under a Credit
Agreement, dated as of June 22, 1994, as amended,
among the Company, WCA Canada Inc., the Guarantor,
Chemical Bank and other banks named therein;
(iv) (A) the Guarantor's authorized equity
capitalization is as set forth in the Final
Prospectus; and (B) the Securities conform in all
material respects to the description thereof
contained in the Final Prospectus;
(v) (A) the indenture governing the
Securities (the "Indenture") has been duly
authorized, executed and delivered by the Company
and the Guarantor; (B) the Indenture constitutes a
legal, valid and binding instrument enforceable
against the Company and the Guarantor in
accordance with its terms (subject to applicable
bankruptcy, reorganization, insolvency, fraudulent
transfer, moratorium or other laws now or
hereafter in effect relating to creditors' rights
generally, and subject as of enforceability, to
general principles of equity, regardless of
whether such enforceability is considered in a
proceeding at law or in equity); and (C) the Debt
Securities have been duly authorized and, when
executed and authenticated in accordance with the
provisions of the Indenture and delivered to and
paid for by the Underwriters pursuant to this
Agreement, in the case of the Underwriters'
Securities, or by the purchasers thereof pursuant
to Delayed Delivery Contracts, in the case of any
Contract Securities, will constitute legal, valid
and binding obligations of the Company and the
Guarantor entitled to the benefits of the
Indenture and enforceable against the Company and
the Guarantor in accordance with their terms
(subject to applicable bankruptcy, reorganization,
insolvency, fraudulent transfer, moratorium or
other laws now or hereafter in effect relating to
creditors rights generally, and subject as to
enforceability, to general principals of equity,
regardless of whether such enforceabiltiy is
considered in a proceeding at law or in equity);
(vi) (A) to such counsel's knowledge, there
is no pending or threatened suit or proceeding
before any court, Governmental Authority or
arbitrator involving the Company, the Guarantor or
any of their subsidiaries, of a character required
to be disclosed in the Registration Statement
which is not disclosed in the Final Prospectus;
(B) such counsel has no reason to believe that any
franchise, contract or other
13
document of a character required to be
described in the Registration Statement or
Final Prospectus, or to be filed as an exhibit
to the Registration Statement, is not described
or filed as required; and (C) the statements
included or incorporated in the Final
Prospectus describing any legal proceedings or
material contracts or agreements relating to
the Company, the Guarantor and their
subsidiaries fairly summarize such matters;
(vii) this Agreement and any Delayed
Delivery Contracts have been duly authorized,
executed and delivered by the Company and the
Guarantor;
(viii) any Delayed Delivery Contracts are
legal, valid and binding agreements of the Company
and the Guarantor enforceable in accordance with
their terms (subject to applicable bankruptcy,
reorganization, insolvency, fraudulent transfer,
moratorium or other laws now or hereafter in
effect relating to creditors' rights generally,
and subject as to enforceability, to general
principles of equity, regardless of whether such
enforceability is considered in a proceeding at
law or in equity);
(ix) none of the execution and delivery of
the Indenture, the issue and sale of the
Securities, the consummation of any other of the
transactions contemplated herein or therein or the
fulfillment of the terms hereof or thereof or of
any Delayed Delivery Contracts will conflict with,
result in a breach or violation of, or constitute
a default under (A) Applicable Laws, (B) the
Certificate of Incorporation or by-laws of the
Company or the Guarantor; (C) the material terms
of any material indenture or other material
agreement or instrument known to such counsel and
to which the Company, the Guarantor or any of
their subsidiaries is a party or bound or (D) any
judgment, order or decree known to such counsel to
be applicable to the Company, the Guarantor or any
of their subsidiaries of any court, arbitrator or
governmental authority having jurisdiction over
the Company, the Guarantor or any of their
subsidiaries, except for any default or defaults
which individually or in the aggregate do not have
a material adverse effect on the Company or the
Guarantor;
(x) the Company and the Guarantor are not
"investment companies" within the meaning of the
Investment Company Act;
14
(xi) there are no contracts or instruments
known to such counsel between the Company or the
Guarantor and any person granting such person the
right to require the Company or the Guarantor to
include any securities held by such person in the
securities registered pursuant to the Registration
statement; and no holders of securities of the
Company or the Guarantor have rights to the
registration of such securities under the
Registration Statement; and
(xii) such other legal opinions with respect
to the Securities as are set forth on Schedule I
hereto.
(2) The Company and the Guarantor also shall have
furnished to the Representatives the opinion of
Cravath, Swaine & ▇▇▇▇▇, counsel to the Company and the
Guarantor, dated the Closing Date, to the same effect
as that described in the preceding paragraph (b) (1) of
this section, except for subparagraphs (ii), (iii),
(vi), (viii), (ix) (A), (ix) (C), (ix) (D), (x), and
(xi), and to the effect that:
(i) the Indenture has been qualified under
the Trust Indenture Act;
(ii) to the extent that the descriptions
contained in the Final Prospectus under the
heading "Taxation", if any, constitute summaries
of provisions of law, such descriptions fairly
summarize the provisions described therein; and
(iii) based on such counsel's review of
Applicable Laws, no consent, approval,
authorization or order of any court or
Governmental Authority is required for the
consummation of the transactions contemplated
herein or in any Delayed Delivery Contracts,
except such as have been obtained under the Act
or, in the event an application is made to list
the Securities on any exchange or automated
quotation system, the Exchange Act, and such as
may be required under the blue sky laws of any
jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters
and such other approvals (specified in such
opinion) as have been obtained.
Each such counsel shall state that the
Registration Statement has become effective under the
Act; any required filing of the Basic Prospectus, any
Preliminary Final Prospectus and the Final Prospectus,
and any supplement thereto, pursuant to Rule 424(b) or
Rule 434 has been made in the
15
manner and within the time period required by Rule
424(b) or Rule 434; to the best knowledge of such
counsel, no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or
threatened.
Each such counsel shall also state that they have
no reason to believe that at the Effective Date the
Registration Statement contained an untrue statement of
a material fact or omitted 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 or that the Final Prospectus
includes an untrue statement of a material fact 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 and the Registration Statement and the Final
Prospectus as amended or supplemented, and any further
amendments and supplements thereto made by the Company
or the Guarantor prior to the Closing Date (other than
the financial statements, including the notes thereto
and related schedules, and other financial data and
accounting information contained therein, as to which
such counsel need express no opinion), appeared on
their face to be appropriately responsive in all
material respects to the requirements of the Act and
the rules and regulations thereunder. The opinion of
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., shall also state that the
documents incorporated by reference in the Final
Prospectus as amended or supplemented (other than the
financial statements, including the notes thereto, and
related schedules and other financial data and
accounting information contained therein, as to which
such counsel need express no opinion), when they became
effective or were filed with the Commission, as the
case may be, complied as to form in all material
respects with the requirements of the Act or the
Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder.
The term "Applicable Laws" shall mean the Delaware
General Corporation law and those laws, rules and
regulations of the United States of America and the
State of New York, in each case, which are currently in
effect and typically applicable to transactions of the
type contemplated by this Agreement. The term
"Governmental Authority" shall mean any executive,
legislative, judicial, administrative or regulatory
body of the States of New York or Delaware or the
United States of America.
In rendering such opinion, such counsel may rely
(A) as to matters involving the application of laws of
any jurisdiction other than the State of Delaware, the
State of New York or the United States, to the extent
they deem proper and specified in such opinion, upon
the opinion of other counsel of
16
good standing whom they believe to be reliable and
who are reasonably satisfactory to counsel for the
Underwriters and (B) as to matters of fact, to the
extent they deem proper, on certificates of
responsible officers of the Company and the
Guarantor and public officials. References to the
Final Prospectus in this paragraph (b) include any
supplements thereto at the Closing Date.
(c) The Representatives shall have received from
▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the
Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of
the Securities, the Indenture, any Delayed Delivery
Contracts, the Registration Statement, the Final
Prospectus (together with any supplement thereto) and
other related matters as the Representatives may
reasonably require, and the Company and the Guarantor
shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass
upon such matters.
(d) The Company and the Guarantor shall have
furnished to the Representatives a certificate of the
Company and the Guarantor, signed by the Chairman of
the Board or the President and the principal financial
or accounting officer of the Company and the Guarantor,
dated the Closing Date, to the effect that the signers
of such certificates have carefully examined the
Registration Statement, the Final Prospectus, any
supplement to the Final Prospectus and this Agreement
and that:
(i) to such person's knowledge, the
representations and warranties of the Company and
the Guarantor, as applicable, in this Agreement
are true and correct in all material respects on
and as of the Closing Date with the same effect as
if made on the Closing Date and the Company and
the Guarantor, as applicable, have complied in all
material respects with all the agreements and
satisfied in all material respects all the
conditions on their part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the
effectiveness of the Registration Statement has
been issued and no proceedings for that purpose
have been instituted or, to such person's
knowledge, threatened; and
(iii) since the date of the most recent
financial statements included in the Final
Prospectus (exclusive of any supplement thereto),
there has been no material adverse change in the
condition (financial or
17
other), earnings, business or properties of the
Company, the Guarantor and their subsidiaries,
as applicable, whether or not arising from
transactions in the ordinary course
of business, except as set forth in or
contemplated in the Final Prospectus (exclusive of
any supplement thereto).
(e) At the Closing Date, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
shall have furnished to the Representatives a letter or
letters (which may refer to letters previously
delivered to one or more of the Representatives), dated
as of the Closing Date, in form and substance
satisfactory to the Representatives, confirming that
they are independent accountants within the meaning of
the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder
and stating to the effect set forth in Exhibit A to
Schedule I hereto
References to the Final Prospectus in this
paragraph (e) and Exhibit A to Schedule I include any
supplement thereto at the date of the letter.
In addition, except as provided in Schedule I
hereto, at the Execution Time, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP shall
have furnished to the Representatives a letter or letters,
dated as of the Execution Time, in form and substance
satisfactory to the Representatives, to the effect set forth
above.
(f) Subsequent to the Execution Time or, if
earlier, the dates as of which information is given in
the Registration Statement (exclusive of any amendment
thereof) and the Final Prospectus (exclusive of any
supplement thereto), there shall not have been (i) any
change or decrease specified in the letter or letters
referred to in paragraph (e) of this Section 5 or (ii)
any change, or any development involving a prospective
change, in or affecting the business or properties of
the Company, the Guarantor and their subsidiaries the
effect of which, in any case referred to in clause (i)
or (ii) above, is, in the reasonable judgment of the
Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering
or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment
thereto) and the Final Prospectus (exclusive of any
supplement thereto).
(g) On or after the Execution Time, (i) no
downgrading shall have occurred in the rating accorded
the Company's or the Guarantor's debt securities or
preferred stock by any "nationally recognized
statistical rating organization", as that term is
defined by the Commission for purposes of
Rule 438(g)(2) under the Act, and (ii) no such
organization shall have publicly
18
announced that it has under surveillance or review,
with possible negative implications, its rating of
any of the Company's or the Guarantor's debt
securities or preferred stock.
(h) Prior to the Closing Date, the Company and
the Guarantor shall have furnished to the
Representatives such further legal opinions,
information, certificates and documents as the
Representatives may reasonably request.
(i) The Company and the Guarantor shall have
accepted Delayed Delivery Contracts in any case where
sales of Contract Securities arranged by the
Underwriters have been approved by the Company and the
Guarantor.
(j) The Company and the Guarantor also agree to
comply with such other conditions as may be set forth
on Schedule I hereto.
If any of the conditions specified in this
Section 5 shall not have been fulfilled in all material
respects when and as provided in this Agreement, or if any
of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material
respects reasonably satisfactory in form and substance to
the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing
Date by the Representatives. Notice of such cancellation
shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
The documents required to be delivered by this
Section 5 shall be delivered at the office of ▇▇▇▇▇, Day,
▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Underwriters, at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ the Closing Date.
6. Reimbursement of Underwriters' Expenses. If
the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the
Underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or
because of any refusal, inability or failure on the part of
the Company or the Guarantor to perform any agreement herein
or comply with any provision hereof other than by reason of
a default by any of the Underwriters, the Company and the
Guarantor, jointly and severally, will reimburse the
Underwriters severally through the Representatives upon
demand for all out-of-pocket expenses (including reasonable
fees and disbursements of one Underwriter's counsel)
approved by the Representatives that shall have been
incurred by them in connection with the proposed purchase
and sale of the Securities.
19
7. Indemnification and Contribution. (a) Each
of the Company and the Guarantor, jointly and severally,
agree to indemnify and hold harmless each Underwriter, the
directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration
statement for the registration of the Securities as
originally filed or in any amendment thereof, or in the
Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage,
liability or action; provided, however, that (i) the Company
and the Guarantor will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written
information furnished to the Company or the Guarantor by or
on behalf of any Underwriter through the Representatives
specifically for inclusion therein, and (ii) such indemnity
with respect to any untrue statement or omission of a
material fact made in any Preliminary Final Prospectus shall
not inure to the benefit of any Underwriter (or any of the
directors, officers, employees and agents of such
underwriter or any person controlling such Underwriter) from
whom the person asserting any such loss, claim, damage or
liability purchased the Securities which are the subject
thereof if such person did not receive a copy of the Final
Prospectus (or the Final Prospectus as supplemented),
excluding documents incorporated therein by reference, at or
prior to the confirmation of the sale of such Securities to
such person in any case where such delivery is required by
the Act and the untrue statement or omission of a material
fact contained in such Preliminary Final Prospectus was
corrected in the Final Prospectus (or the Final Prospectus
as supplemented). This indemnity agreement will be in
addition to any liability which the Company or the Guarantor
may otherwise have.
(b) Each Underwriter severally agrees to
indemnify and hold harmless the Company, the Guarantor, each
of their directors, each of their officers who signs the
Registration Statement, and each person who controls the
Company or the Guarantor within the meaning of either the
Act or the Exchange Act, to the same
20
extent as the foregoing indemnity from the Company and
the Guarantor to each Underwriter, but only with
reference to written information relating to such
Underwriter furnished to the Company or the Guarantor by
or on behalf of such Underwriter through the
Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity, and
agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or
defending any such action or claim. This indemnity
agreement will be in addition to any liability which any
Underwriter may otherwise have. The Company and the
Guarantor acknowledge that the statements set forth in
the last paragraph of the cover page, under the heading
"Underwriting" or "Plan of Distribution" and, if Schedule
I hereto provides for sales of Securities pursuant to
delayed delivery arrangements, in the last sentence under
the heading "Delayed Delivery Arrangements" in any
Preliminary Final Prospectus or the Final Prospectus
constitute the only information furnished in writing by
or on behalf of the several Underwriters for inclusion in
the documents referred to in the foregoing indemnity, and
you, as the Representatives, confirm that such statements
are correct.
(c) Promptly after receipt by an indemnified
party under this Section 7 of notice of the commencement of
any action, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in
writing of the commencement thereof; but the failure so to
notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party
of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations
to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of
the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for
which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory
to the indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local
counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel
if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably
concluded that there may be legal defenses
21
available to it and/or other indemnified parties which
are different from or additional to those available to
the indemnifying party, (iii) the indemnifying party
shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party
within a reasonable time after notice of the institution
of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written
consent of the indemnified parties, settle or compromise
or consent to the entry of any judgment with respect to
any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to
such claim or action) unless such settlement, compromise
or consent includes an unconditional release of each
indemnified party from all liability arising out of such
claim, action, suit or proceeding. An indemnifying party
shall not be liable under this Section 7 to any
indemnified party regarding any settlement or compromise
or consent to the entry of any judgement with respect to
any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to
such claim or action) unless such settlement, compromise
or consent is consented to by such indemnifying party,
which consent shall not be unreasonably withheld.
(d) In the event that the indemnity provided in
paragraph (a) or (b) of this Section 7 is unavailable to or
insufficient to hold harmless an indemnified party for any
reason, the Company and the Guarantor and the Underwriters
agree to contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or
defending the same) (collectively "Losses") to which the
Company and the Guarantor, on one hand, and one or more of
the Underwriters, on the other hand, may be subject in such
proportion as is appropriate to reflect the relative
benefits received by the Company and the Guarantor, on one
hand, and by the Underwriters, on the other hand, from the
offering of the Securities; provided, however, that in no
such case shall any Underwriter (except as may be provided
in any agreement among underwriters relating to the offering
of the Securities) be responsible for any amount in excess
of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the
allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Guarantor,
on the one hand, and the Underwriters, on the other hand,
shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the
relative fault of the Company and the Guarantor, on the one
hand, and of the Underwriters, on the other hand, in
connection with the statements or omissions which resulted
in such Losses as well as any other relevant equitable
considerations. Benefits received by the
22
Company and the Guarantor shall be deemed to be equal to
the total net proceeds from the offering (before
deducting expenses), and benefits received by the
Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as
set forth on the cover page of the Final Prospectus.
Relative fault shall be determined by reference to, 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 on the one hand or the
Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The
Company and the Guarantor and the Underwriters agree that
it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of
allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this
Section 7, each person who controls an Underwriter within
the meaning of either the Act or the Exchange Act and
each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as
such Underwriter, and each person who controls the
Company or the Guarantor within the meaning of either the
Act or the Exchange Act, each officer of the Company or
the Guarantor who shall have signed the Registration
Statement and each director of the Company or the
Guarantor shall have the same rights to contribution as
the Company and the Guarantor, subject in each case to
the applicable terms and conditions of this paragraph
(d).
8. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the
Debt Securities agreed to be purchased by such Underwriter
or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters
shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Debt Securities
set forth opposite their names in Schedule II hereto bears
to the aggregate principal amount of Debt Securities set
forth opposite the names of all the remaining Underwriters)
the Debt Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate principal
amount of Debt Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase shall exceed
10% of the aggregate principal amount of Debt Securities set
forth in Schedule II hereto, the remaining Underwriters
shall have the right to purchase all, but shall not be under
any obligation to purchase any, of the Debt Securities, and
if such nondefaulting Underwriters do not purchase all the
Debt Securities, this Agreement will terminate without
liability to any nondefaulting
23
Underwriter, the Company or the Guarantor. In the event of
a default by any Underwriter as set forth in this Section 8,
the Closing Date shall be postponed for such period, not
exceeding seven days, as the Representatives shall determine
in order that the required changes in the Registration
Statement and the Final Prospectus or in any other documents
or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company, the Guarantor and any
nondefaulting Underwriter for damages occasioned by its default
hereunder.
9. Termination. This Agreement shall be subject
to termination in the absolute discretion of the
Representatives, by notice given to the Company prior to
delivery of and payment for the Securities, if prior to such
time (i) trading in the Guarantor's securities shall have
been suspended by the Commission or the New York Stock
Exchange or trading in securities generally on the New York
Stock Exchange shall have been suspended or limited or
minimum prices shall have been established on such Exchange,
(ii) a banking moratorium shall have been declared either by
Federal or New York State authorities or (iii) there shall
have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or
war or other calamity or crisis the effect of which on
financial markets is such as to make it, in the reasonable
judgment of the Representatives, impracticable or
inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Final Prospectus
(exclusive of any supplement thereto).
10. Representations and Indemnities to Survive.
The respective agreements, representations, warranties,
indemnities and other statements of the Company, the
Guarantor or their officers and of the Underwriters set
forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made
by or on behalf of any Underwriter or the Company, the
Guarantor or any of the officers, directors or controlling
persons referred to in Section 7 hereof, and will survive
delivery of and payment for the Securities. The provisions
of Sections 6 and 7 hereof shall survive the termination or
cancellation of this Agreement.
11. Notices. All communications hereunder will
be in writing and effective only on receipt, and, if sent to
the Representatives, will be mailed, delivered or
telegraphed and confirmed to them, at the address specified
in Schedule I hereto; or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at [701
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇],
attention of the [ ].
24
12. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and
controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be
governed by and construed in accordance with the laws of the
State of New York without reference to principles of
conflicts of laws.
25
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to us
the enclosed duplicate hereof, whereupon this letter and
your acceptance shall represent a binding agreement among
the Company, the Guarantor and the several Underwriters.
Very truly yours,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Products Co.,
By:...................................
Name:
Title:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Corporation,
By:...................................
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
By: [ ],
By: ....................................
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
26
SCHEDULE I
Debt Securities
Underwriting Agreement dated
Registration Statement No. 33-
Representatives:
Title of Securities:
Principal Amount:
Overallotment
option:
Interest Rate:
Purchase Price and
Currency:
Offering Price:
Interest Payment
Dates:
Subordination
Provisions:
Optional Redemption:
Sinking Fund
Provisions:
Delayed Delivery:
Closing Date and
Time:
Method of Payment of Underwriters' Securities:
Other provisions of
or Amendments to
Underwriting
Agreement:
27
Additional Covenants
Pursuant to Section 4(g):
Section 4(g) Covenants: Listing upon notice of issuance on
any national securities exchange or automated quotation
system:
Section 5(h) provisions, if any:
Additional Covenants
Pursuant to Section 5:
[At or prior to the Closing Date, the Indenture dated
as of the Closing Date, between the Company, the
Guarantor and [ ], as Trustee, in form and
substance satisfactory to the Underwriters, shall have
been executed and delivered by the parties thereto and
shall be in full force and effect.]
[Underwriters' commission shall be __% of the principal
amount of Designated Securities for which Delayed Delivery
Contracts have been entered into and the check given in
payment of such commission shall be drawn to the order of
_____________]
[Maximum aggregate principal amount of Designated Securities
to be offered and sold pursuant to Delayed Delivery
Contracts: [$]_______________]
[Minimum principal amount of each Delayed Delivery Contract:
[$]______________]
28
EXHIBIT A TO SCHEDULE I
In the letter or letters furnished to the
Representatives pursuant to Section 5(e), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LLP shall, subject to such limitations and qualifications as
are required by applicable accounting rules and standards
including, without limitation, the Statement on Auditing
Standards Number 72, state in effect that:
(i) in their opinion the audited financial statements
and financial statement schedules and any pro forma
financial statements of the Guarantor and its
subsidiaries included or incorporated in the Registration
Statement and the Final Prospectus and reported on by
them comply in form in all material respects with the
applicable accounting requirements of the Act and the
Exchange Act and the related published rules and
regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Guarantor and
its subsidiaries; a reading of the minutes of the
meetings of the stockholders, directors and the audit,
compensation and nominating committees of the Guarantor
and its subsidiaries; and inquiries of certain officials
of the Guarantor who have responsibility for financial
and accounting matters of the Guarantor and its
subsidiaries as to transactions and events subsequent to
the date of the most recent audited financial statements
in or incorporated in the Final Prospectus, nothing came
to their attention which caused them to believe that:
(1) any unaudited financial statements included or
incorporated in the Registration Statement and the
Final Prospectus do not comply in form in all material
respects with applicable accounting requirements and
with the published rules and regulations of the
Commission with respect to financial statements
included or incorporated in quarterly reports on Form
10-Q under the Exchange Act; or that said unaudited
financial statements are not in conformity with
generally accepted accounting principles applied on a
basis substantially consistent with that of the audited
financial statements included or incorporated in the
Registration Statement and the Final Prospectus;
(2) with respect to the period subsequent to the
date of the most recent financial statements (other
than any capsule information), audited or unaudited, in
or incorporated in the Registration Statement and the
Final Prospectus, there were any changes, at a
specified date not more than five business days prior
to the date of the letter, in the long-term debt of the
Guarantor and its
29
subsidiaries or capital stock of the Guarantor, or
increases in common stockholders' deficit of the
Guarantor or other changes in balance sheet items
the Representatives may reasonably request as
compared with the amounts shown on the most recent
financial statements included or incorporated in the
Registration Statement and the Final Prospectus, or
for the period from the date of the most recent
financial statements included or incorporated in the
Registration Statement and the Final Prospectus to
such specified date there were any decreases, as
compared with the corresponding period in the
preceding year or the preceding quarter in net
sales, operating income, income from continuing
operations before income taxes or in total or per
share amounts of net income applicable to common
stockholders of the Guarantor and its subsidiaries
or any other income statement items as the
Representatives may reasonably request, except in
all instances for changes or decreases set forth in
such letter, in which case the letter shall be
accompanied by an explanation by the Guarantor as to
the significance thereof unless said explanation is
not deemed necessary by the Representatives;
(3) the information included or incorporated in
the Registration Statement and Final Prospectus in
response to Regulation S-K, Item 301 (Selected
Financial Data), Item 302 (Supplementary Financial
Information), Item 402 (Executive Compensation) and
Item 503(d) (Ratio of Earnings to Fixed Charges) is not
in conformity with the applicable disclosure
requirements of Regulation S-K; or
(4) the amounts included in any unaudited
"capsule" information included or incorporated in the
Registration Statement and the Final Prospectus do not
agree with the amounts set forth in the unaudited
financial statements for the same periods or were not
determined on a basis substantially consistent with
that of the corresponding amounts in the audited
financial statements included or incorporated in the
Registration Statement and the Final Prospectus;
(iii) they have performed certain other specified
procedures as a result of which they determined that
certain information of an accounting, financial or
statistical nature (which is limited to accounting,
financial or statistical information derived from the
general accounting records of the Guarantor and its
subsidiaries) set forth in the Registration Statement and
the Final Prospectus and in Exhibit 12 to the
Registration Statement, including the information
included or incorporated in Items 1, 2, 6, 7 and 11 of
the Guarantor's Annual report on Form 10-K, incorporated
in the Registration Statement and the Prospectus, and the
information included in the "Management's Discussion and
Analysis of Financial Condition
30
and Results of Operations" included or incorporated in
the Guarantor's Quarterly Reports on Form 10-Q,
incorporated in the Registration Statement and the
Final Prospectus, agrees with the accounting records
of the Guarantor and its subsidiaries, excluding any
questions of legal interpretation; and
(iv) if unaudited pro forma financial statements are
included or incorporated in the Registration Statement or
the Final Prospectus, on the basis of a reading of the
unaudited pro forma financial statements, carrying out
certain specified procedures, inquiries of certain
officials of the Guarantor and the acquired company who
have responsibility for financial and accounting matters,
and proving the arithmetic accuracy of the application of
the pro forma adjustments to the historical amounts in
the pro forma financial statements, nothing came to their
attention which caused them to believe that the pro forma
financial statements do not comply in form in all
material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or that the
pro forma adjustments have not been properly applied to
the historical amounts in the compilation of such
statements.
31
SCHEDULE II
Principal
Amount
Underwriter To Be Purchased
32
SCHEDULE III
Delayed Delivery Contract
, 199_
[Insert name and address
of lead Representative]
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Products Co. (the "Company" ), and the
Company agrees to sell to the undersigned, on ,
19 , (the "Delivery Date"), principal amount of the
Company's Debt Securities unconditionally guaranteed on a
[senior] [subordinated] basis by ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
Corporation (the "Guarantor") (collectively, the
"Securities") offered by the Company's and the Guarantor's
Prospectus dated , 1995, and related Prospectus
Supplement dated , 19 , receipt of a copy of
which is hereby acknowledged, at a purchase price of % of
the principal amount thereof, plus [accrued interest]
[amortization of original issue discount], if any, thereon
from , 19 , to the date of payment and delivery,
and on the further terms and conditions set forth in this
contract.
Payment for the Securities to be purchased by the
undersigned shall be made on or before 11:00 AM, New York
City time, on the Delivery Date to or upon the order of the
Company in New York Clearing House (next day) funds, at your
office or at such other place as shall be agreed between the
Company and the undersigned, upon delivery to the under-
signed of the Securities in definitive fully registered form
and in such authorized denominations and registered in such
names as the undersigned may request by written or tele-
graphic communication addressed to the Company not less than
five full business days prior to the Delivery Date. If no
request is received, the Securities will be registered in
the name of the undersigned and issued in a denomination
equal to the aggregate principal amount or number of
Securities to be purchased by the undersigned on the
Delivery Date.
33
The obligation of the undersigned to take delivery
of and make payment for Securities on the Delivery Date, and
the obligation of the Company and the Guarantor to sell and
deliver Securities on the Delivery Date, shall be subject to
the conditions (and neither party shall incur any liability
by reason of the failure thereof) that (1) the purchase of
Securities to be made by the undersigned, which purchase the
undersigned represents is not prohibited on the date hereof,
shall not on the Delivery Date be prohibited under the laws
of the jurisdiction to which the undersigned is subject, and
(2) the Company and the Guarantor, on or before the Delivery
Date, shall have sold to certain underwriters (the
"Underwriters") such principal amount of Securities as is to
be sold to them pursuant to the Underwriting Agreement
referred to in the Prospectus and Prospectus Supplement
mentioned above. Promptly after completion of such sale to
the Underwriters, the Company will mail or deliver to the
undersigned at its address set forth below notice to such
effect, accompanied by a copy of the opinion of counsel for
the Company and the Guarantor delivered to the Underwriters
in connection therewith. The obligation of the undersigned
to take delivery of and make payment for the Securities, and
the obligation of the Company and the Guarantor to cause the
Securities to be sold and delivered, shall not be affected
by the failure of any purchaser to take delivery of and make
payment for the Securities pursuant to other contracts
similar to this contract.
This contract will inure to the benefit of and be
binding upon the parties hereto and their respective succes-
sors, but will not be assignable by either party hereto
without the written consent of the other.
It is understood that acceptance of this contract
and other similar contracts is in the Company's and the
Guarantor's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis.
If this contract is acceptable to the Company and the
Guarantor, it is required that the Company and the Guarantor
sign the form of acceptance below and mail or deliver one of
the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract
between the Company and the Guarantor, on the one hand, and
the undersigned, on the other hand,
34
as of the date first above written, when such counterpart
is so mailed or delivered.
This agreement shall be governed by and construed
in accordance with the laws of the State of New York.
Very truly yours,
..................................
(Name of Purchaser)
By
.................................
(Signature and Title of Officer)
.................................
(Address)
Accepted:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Products Co.,
By
.................................................
Name:
Title:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Corporation
By
.................................................
Name:
Title:
