1
Draft of October 10, 1995
$100,000,000
QUAKER STATE CORPORATION
__% Notes Due 2005
UNDERWRITING AGREEMENT
October __, 1995
CS FIRST BOSTON CORPORATION
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
As Representatives of the Several Underwriters,
c/o CS First Boston Corporation,
Park Avenue Plaza
New York, NY 10055
Dear Sirs:
1. Introductory. Quaker State Corporation, a Delaware
corporation ("Company"), proposes to issue and sell $100,000,000 principal
amount of its __% Notes Due 2005 ("Securities") to be issued under an
indenture, dated as of October __, 1995 ("Indenture"), between the Company
and Chemical Bank, N.A., as Trustee. The Company hereby agrees with the
several Underwriters named in Schedule A hereto ("Underwriters") as
follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement on Form S-3 (No. 33-63241)
relating to the Securities, including a form of prospectus, has been
filed with the Securities and Exchange Commission ("Commission") and
either (i) has been declared effective under the Securities Act of
1933, as amended ("Act"), and is not proposed to be amended or (ii)
is proposed to be amended by amendment or post-effective amendment.
If such registration statement ("initial registration statement") has
been declared effective, either (i) an additional registration
statement ("additional registration statement") relating to the
Securities may have been filed with the Commission pursuant to Rule
462(b) ("Rule 462(b)") under the Act and, if so filed, has become
effective upon filing pursuant to such Rule and the Securities all
have been duly registered under the Act pursuant to the initial
registration statement and, if applicable, the additional
registration statement or (ii) such an additional registration
statement is proposed to be filed with the Commission pursuant to
Rule 462(b) and will become effective upon filing pursuant to such
Rule and upon such filing the Securities will all have been duly
registered under the Act pursuant to the initial registration
statement and such additional registration statement. If the Company
does not propose to amend the initial registration statement or, if
an additional registration statement has been filed and the Company
does not propose
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to amend it, and if any post-effective amendment to such registration
statement has been filed with the Commission prior to the execution and
delivery of this Agreement, the most recent amendment (if any) to each such
registration statement has been declared effective by the Commission or has
become effective upon filing pursuant to Rule 462(c) ("Rule 462(c)") under
the Act or, in the case of the additional registration statement, Rule
462(b). For purposes of this Agreement, "Effective Time" with respect to
the initial registration statement or, if filed prior to the execution and
delivery of this Agreement, the additional registration statement means (i)
if the Company has advised the Representatives that it does not propose to
amend such registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment thereto
(if any) filed prior to the execution and delivery of this Agreement, was
declared effective by the Commission or has become effective upon filing
pursuant to Rule 462(c), or (ii) if the Company has advised the
Representatives that it proposes to file an amendment or post-effective
amendment to such registration statement, the date and time as of which
such registration statement, as amended by such amendment or post-effective
amendment, as the case may be, is declared effective by the Commission. If
an additional registration statement has not been filed prior to the
execution and delivery of this Agreement but the Company has advised the
Representatives that it proposes to file one, "Effective Time" with respect
to such additional registration statement means the date and time as of
which such registration statement is filed and becomes effective pursuant
to Rule 462(b). "Effective Date" with respect to the initial registration
statement or the additional registration statement (if any) means the date
of the Effective Time thereof. The initial registration statement, as
amended at its Effective Time, including all material incorporated by
reference therein and including all information contained in the additional
registration statement (if any) and deemed to be a part of the initial
registration statement as of the Effective Time of the additional
registration statement pursuant to the General Instructions of the Form on
which it is filed and including all information (if any) deemed to be a
part of the initial registration statement as of its Effective Time
pursuant to Rule 430A(b) ("Rule 430A(b)") under the Act, is hereinafter
referred to as the "Initial Registration Statement." The additional
registration statement, as amended at its Effective Time, including the
contents of the initial registration statement incorporated by reference
therein and including all information (if any) deemed to be a part of the
additional registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "Additional Registration
Statement." The Initial Registration Statement and the Additional
Registration Statement are herein referred to collectively as the
"Registration Statements" and individually as a "Registration Statement."
The form of prospectus relating to the Securities, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) ("Rule 424(b)")
under the Act or (if no such filing is required) as included in a
Registration Statement, including all material incorporated by reference in
such prospectus, is hereinafter referred to as the "Prospectus." No
document has been or will be prepared or distributed in reliance on Rule
434 under the Act. No stop order suspending the effectiveness of such
Registration Statement or any part thereof has been issued and no
proceeding for that purpose has been instituted or, to the Company's
knowledge, threatened by the Commission.
(b) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement:
(i) on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all respects to the
requirements of the Act, the Trust Indenture Act of 1939 ("Trust
Indenture
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Act") and the rules and regulations of the Commission ("Rules and
Regulations") and did not include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) on the
Effective Date of the Additional Registration Statement (if any), each
Registration Statement conformed, or will conform, in all respects to the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations and did not include, or will not include, any untrue statement
of a material fact and did not omit, or will not omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading and (iii) on the date of this Agreement,
the Initial Registration Statement and, if the Effective Time of the
Additional Registration Statement is prior to the execution and delivery of
this Agreement the Additional Registration Statement each conforms, and at
the time of filing of the Prospectus pursuant to Rule 424(b) or (if no such
filing is required) at the Effective Date of the Additional Registration
Statement in which the Prospectus is included, and on the Closing Date (as
hereinafter defined), each Registration Statement and the Prospectus will
conform, in all respects to the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations, and neither of such documents
includes, or will include, any untrue statement of a material fact or
omits, or will omit, to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. If the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement: (A) on the Effective Date of the
Initial Registration Statement, the Initial Registration Statement and the
Prospectus will conform in all respects to the requirements of the Act, the
Trust Indenture Act and the Rules and Regulations, and neither of such
documents will include any untrue statement of a material fact or will omit
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and no Additional Registration
Statement has been or will be filed and (B) on the Closing Date, the
Initial Registration Statement and the Prospectus will conform in all
respects to the requirements of the Act, the Trust Indenture Act and the
Rules and Regulations, and neither of such documents will include any
untrue statement of a material fact or will omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and no Additional Registration Statement has been or will
be filed. The two preceding sentences do not apply to statements in or
omissions from a Registration Statement or Prospectus based upon written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and
agreed that the only such information is that described as such in Section
7(b).
(c) Each preliminary prospectus filed as part of a
registration statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the Act,
conformed when so filed in all respects to the requirements of the
Act and the Rules and Regulations.
(d) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware with corporate power and authority to own, lease
and operate its properties and conduct its business as described in
the Prospectus; and the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which its ownership, leasing or operation of property or the conduct
of its business requires such qualification.
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(e) Each of the Company's material subsidiaries is listed on
Exhibit I hereto (collectively, "Material Subsidiaries"). Each
Material Subsidiary of the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, with corporate power and
authority to own, lease and operate its properties and conduct its
business as described in the Prospectus; and each Material Subsidiary
of the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership, leasing or operation of property or the conduct of its
business requires such qualification; all of the issued and
outstanding capital stock of each Material Subsidiary of the Company
has been duly authorized and validly issued and is fully paid and
nonassessable and the capital stock of each Material Subsidiary is
owned by the Company, directly or through subsidiaries, free and
clear of any mortgage, pledge, lien, security interest, claim or
other encumbrance or defect of any kind; and there are no rights
granted to or in favor of any third party (whether acting in an
individual, fiduciary or other capacity) other than the Company to
acquire any such capital stock, any additional capital stock or any
other securities of any Material Subsidiary.
(f) The Indenture has been duly authorized by the Company
and, if the Effective Time of a Registration Statement is prior to
the execution and delivery of this Agreement, has been or otherwise
upon such Effective Time will be duly qualified under the Trust
Indenture Act with respect to the Securities registered thereby; the
Securities have been duly authorized; and when the Securities are
delivered and paid for pursuant to this Agreement on the Closing Date
(as defined in Section 3 below), the Indenture will have been duly
executed and delivered, such Securities will have been duly executed,
authenticated, issued and delivered and will conform to the
description thereof contained in the Prospectus and the Indenture and
such Securities will constitute valid and legally binding obligations
of the Company, enforceable in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(g) No consent, approval, authorization, order, registration
or qualification of, or filing with, any third party (whether acting
in an individual, fiduciary or other capacity) or any governmental
agency or body or any court is required for the consummation of the
transactions contemplated by this Agreement in connection with the
issuance and sale of the Securities by the Company, including,
without limitation, consummation by the Company of the transactions
contemplated in the Prospectus under the caption "Use of Proceeds,"
except such as have been obtained and made under the Act, the Trust
Indenture Act or the Rules and Regulations and such as may be
required under state securities laws.
(h) The execution, delivery and performance of the Indenture
and this Agreement and the issuance and sale of the Securities and
compliance with the terms and provisions thereof will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any assets or property of the
Company or any of its subsidiaries under, any statute, any rule,
regulation, order or decree of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over the Company or
any subsidiary of the Company or any of their properties, assets or
operations, or any indenture, mortgage, loan or credit agreement,
note, lease, license or other agreement or instrument to which the
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Company or any such subsidiary is a party or by which the Company or any
such subsidiary is bound or to which any of the properties, assets or
operations of the Company or any such subsidiary is subject, or the charter
or by-laws of the Company or any such subsidiary, and the Company has full
power and authority to authorize, issue and sell the Securities as
contemplated by this Agreement and the Indenture.
(i) This Agreement has been duly authorized, executed and
delivered by the Company.
(j) The Company and its subsidiaries have good and marketable
title to all material real properties and all other material
properties and assets owned by them, in each case free and clear of
any mortgage, pledge, lien, security interest, claim or other
encumbrance or defect that would materially affect the value thereof
or materially interfere with the use made or to be made thereof by
them; and the Company and its subsidiaries hold any leased or
subleased real or personal property under valid, subsisting and
enforceable leases or subleases with no exceptions that would
materially interfere with the use made or to be made thereof by them;
neither the Company nor any of its subsidiaries is in default under
any such lease or sublease; and no material claim of any sort has
been asserted by anyone adverse to the rights of the Company or any
subsidiary under any such lease or sublease or affecting or
questioning the right of such entity to the continued possession of
the leased or subleased properties under any such lease or sublease.
(k) The Company and its subsidiaries possess adequate
certificates, authorizations, permits or licenses issued by
appropriate governmental agencies or bodies necessary to own, lease
or operate their properties and conduct the business now operated by
them ("Licenses") and all such Licenses are in full force and effect.
Neither the Company nor any of its subsidiaries has received notice
of any proceedings (or is aware of any facts that would reasonably be
expected to result in any such proceedings) relating to the
revocation or modification of any such License that, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on
the financial condition, business or results of operations of the
Company and its subsidiaries taken as a whole.
(l) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent
that might have a material adverse effect on the financial condition,
business or results of operations of the Company and its subsidiaries
taken as a whole.
(m) The Company and its subsidiaries own or have obtained
valid licenses for all trademarks, trademark registrations, service
marks, service mark registrations, trade names, copyrights, copyright
registrations, patents, inventions, know-how, confidential
information and any other intellectual property described in the
Prospectus as being owned, licensed or used by the Company or any of
its subsidiaries or that are necessary for the conduct of their
businesses as described in the Prospectus (collectively,
"Intellectual Property") and the Company is not aware of any claim
(or of any facts that would reasonably be expected to result in any
such claim) to the contrary or any challenge by any third party to
the rights of the Company or any of its subsidiaries with respect to
any such Intellectual Property or to the validity or scope of any
such Intellectual Property and neither the Company nor any of its
subsidiaries has any claim against a third party with respect to the
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infringement by such third party to any such Intellectual Property that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
financial condition, business or results of operations of the Company and
its subsidiaries taken as a whole. The Company and its subsidiaries have a
good faith belief in the distinctiveness and enforceability of all
trademarks, service marks and trade names and in the validity and
enforceability of all patents comprising the Intellectual Property.
(n) The properties, assets and operations of the Company and
its subsidiaries are in compliance with all applicable federal,
state, local and foreign environmental laws, rules and regulations,
orders, decrees, judgments, permits and licenses relating to public
and worker health and safety, and to the protection and clean-up of
the natural environment and to the protection or preservation of
natural resources and of plant and animal species, and activities or
conditions related thereto, including, without limitation, those
relating to the production, extraction, processing, manufacturing,
generation, handling, disposal, transportation or release of
hazardous materials (collectively, "Environmental Laws"), except to
the extent that failure so to comply would not individually or in the
aggregate have a material adverse effect on the financial condition,
business or results of operations of the Company and its subsidiaries
taken as a whole. With respect to such properties, assets and
operations (including any previously owned, leased or operated
properties, assets or operations with respect to such prior period of
ownership or operation), there are no past, present or, to the
knowledge of the Company, reasonably anticipated future events,
conditions, circumstances, activities, practices, incidents, actions
or plans of the Company or any of its subsidiaries that may interfere
with or prevent compliance or continued compliance by the Company and
its subsidiaries with applicable Environmental Laws in a manner that
would reasonably be expected to have a material adverse effect on the
financial condition, business or results of operations of the Company
and its subsidiaries taken as a whole. Except as described in the
Prospectus, neither the Company nor any of its subsidiaries is the
subject of any federal, state, local or foreign investigation, and
neither the Company nor any of its subsidiaries has received any
notice or claim (or is aware of any facts that would reasonably be
expected to result in any such claim), nor entered into any
negotiations or agreements with any third party, relating to any
liability or potential liability or remedial action or potential
remedial action under Environmental Laws, nor are there any pending,
reasonably anticipated or, to the knowledge of the Company,
threatened actions, suits or proceedings against or affecting the
Company, any of its subsidiaries or their properties, assets or
operations, in connection with any such Environmental Laws that, if
determined adversely to the Company or any of its subsidiaries would
individually or in the aggregate have a material adverse effect on
the financial condition, business or results of operations of the
Company and its subsidiaries taken as a whole. The term "hazardous
materials" shall mean those substances that are regulated by or form
the basis for liability under any applicable Environmental Laws.
(o) Except as disclosed in the Prospectus, there are no
pending actions, suits, proceedings or investigations against or
affecting the Company, any of its subsidiaries or any of their
respective properties, assets or operations that, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on
the financial condition, business or results of operations of the
Company and its subsidiaries taken as a whole, or would materially
and adversely affect the ability of the Company to perform its
obligations under the Indenture or this Agreement, or which are
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otherwise material in the context of the sale of the Securities; and no
such actions, suits, proceedings or investigations are threatened or, to
the knowledge of the Company, contemplated.
(p) The financial statements and related schedules and notes
included or incorporated by reference in each Registration Statement
and the Prospectus comply with the requirements of the Act and the
Rules and Regulations, present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown, and
such financial statements have been prepared in conformity with
generally accepted accounting principles in the United States applied
on a consistent basis. The financial information and statistical
data set forth in the Prospectus under the captions "Selected
Financial Data" and "Capitalization" present fairly the information
shown therein and have been compiled on a basis consistent with that
of the audited consolidated financial statements included in the
Registration Statements.
(q) Since the dates as of which information is given in each
Registration Statement and the Prospectus, (i) neither the Company
nor any of its subsidiaries has incurred any material liability or
obligation (indirect, direct or contingent) or entered into any
material verbal or written agreement or other transaction that is not
in the ordinary course of business or that could result in a material
reduction in the future earnings of the Company or its subsidiaries;
(ii) neither the Company nor any of its subsidiaries has sustained
any material loss or interference with its business or properties
from fire, flood, windstorm, accident or other calamity (whether or
not covered by insurance); (iii) there has been no change, except as
contemplated by the Prospectus, in the indebtedness of the Company
and no change in the capital stock of the Company and no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock; and (iv) there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other),
business, prospects or results of operations of the Company and its
subsidiaries taken as a whole.
(r) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of
1940, as amended.
(s) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes (Chapter 92-198, Laws of Florida), and the regulations
thereunder, and the Company agrees to comply with such Section if
prior to the completion of the distribution of the Securities it
commences doing such business.
(t) Each "employee benefit plan" within the meaning of the
Employee Retirement Income Security Act of 1974, as amended
("ERISA"), in which employees of the Company or any subsidiary
participate or as to which the Company or any subsidiary has any
liability (the "ERISA Plans") is in compliance in all material
respects with the applicable provisions of ERISA and the Internal
Revenue Code of 1986, as amended (the "Code"), except that no
representation as to compliance is made by the Company in respect of
those ERISA Plans that are not
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sponsored by the Company. Neither the Company nor any subsidiary has any
liability with respect to the ERISA Plans under Title IV of ERISA, nor does
the Company expect that any such liability will be incurred, that would
individually or in the aggregate have a material adverse effect on the
financial condition, business or results of operations of the Company and
its subsidiaries taken as a whole. The value of the aggregate vested and
nonvested benefit liabilities under each of the ERISA Plans that is subject
to Section 412 of the Code, determined as of the end of such ERISA Plan's
most recent ended plan year on the basis of the actuarial assumptions
specified for funding purposes in such Plan's most recent actuarial
valuation report, did not exceed the aggregate current value of the assets
of such ERISA Plan allocable to such benefit liabilities. Neither the
Company nor any subsidiary has any material liability, whether or not
contingent, with respect to any ERISA Plan that provides post-retirement
welfare benefits, except as disclosed in the notes to the financial
statements included in or incorporated by reference into the Prospectus.
(u) The Company and its subsidiaries have filed all federal,
state, local and foreign tax returns required to be filed, such
returns are complete and correct, and all taxes shown by such returns
or otherwise assessed that are due and payable have been paid, except
such taxes as are being contested in good faith and as to which
adequate reserves have been provided. The charges, accruals and
reserves on the books of the Company and its subsidiaries in respect
of any tax liability for any year not finally determined are adequate
to meet any assessments or reassessments for additional taxes; and
there has been no tax deficiency asserted and the Company is not
aware of any facts that would reasonably be expected to result in the
assertion of any tax deficiency against the Company or any of its
subsidiaries that would individually or in the aggregate have a
material adverse effect on the financial condition, business or
results of operations of the Company and its subsidiaries taken as a
whole.
(v) The Company and its subsidiaries maintain a system of
internal accounting controls sufficient for purposes of the
prevention or detection of errors or irregularities in amounts that
could be expected to be material to the Company's consolidated
financial statements and the recording of transactions so as to
permit the preparation of such consolidated financial statements in
conformity with generally accepted accounting principles.
(w) Neither the Company nor any of its subsidiaries is in
violation of (i) its charter or by-laws or (ii) any applicable law,
ordinance, administrative or governmental rule or regulation, or any
order, decree or judgment of any court or governmental agency or body
having jurisdiction over the Company or any subsidiary except, with
respect to this clause (ii), for such violations that would not
individually or in the aggregate have a material adverse effect on
the financial condition, business or results of operations of the
Company and its subsidiaries taken as a whole; and except as
disclosed in the Prospectus, no event of default or event that, but
for the giving of notice or the lapse of time or both, would
constitute an event of default exists, or upon the use of proceeds
from the sale of the Securities in the manner contemplated by the
description under the caption "Use of Proceeds" contained in the
Prospectus or upon the consummation of the other transactions
contemplated by the Prospectus will exist, under any indenture,
mortgage, loan or credit agreement, note, lease, permit, license or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or to which
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any of the properties, assets or operations of the Company or any such
subsidiary is subject.
(x) The Company and its subsidiaries carry or are entitled to
the benefits of insurance in such amounts and covering such risks as
is generally maintained by companies of established repute engaged in
the same or similar business, and all such insurance is in full force
and effect.
(y) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company or any of
its subsidiaries and any person that would give rise to a valid claim
against the Company, any such subsidiary or any Underwriter for
brokerage commission, finder's fee or other like payment.
(z) On the date each Registration Statement was first filed
with the Commission, and at the Effective Time, the Company met the
conditions for use of Form S-3 under the Act and the Rules and
Regulations.
3. Purchase, Sale and Delivery of Securities. On the basis of
the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company agrees to
sell to the Underwriters, and the Underwriters agree, severally and not
jointly, to purchase from the Company, at a purchase price of ______% of
the principal amount thereof plus accrued interest from ____________ __,
1995 to the Closing Date, the respective principal amounts of Securities
set forth opposite the names of the Underwriters in Schedule A hereto.
The Company will deliver against payment of the purchase price
the Securities in the form of one or more permanent global Securities in
definitive form (the "Global Securities") deposited with the Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the
name of Cede & Co., as nominee for DTC. Interests in any permanent Global
Securities will be held only in book-entry form through DTC, except in the
limited circumstances described in the Prospectus. Payment for the
Securities shall be made by the Underwriters in Federal (same day) funds by
official check or checks drawn to the order of the Company at the office of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ at 10:00
A.M., (New York time), on ____________, 1995, or at such other time not
later than seven full business days thereafter as CS First Boston
Corporation ("CS First Boston") and the Company determine, such time being
herein referred to as the "Closing Date," against delivery to the Trustee
as custodian for DTC of the Global Securities representing all of the
Securities. The Global Securities will be made available for checking at
the office of CS First Boston Corporation, Park Avenue Plaza, New York, New
York 10055 at least 24 hours prior to the Closing Date.
4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Securities for sale to the public
as set forth in the Prospectus.
5. Certain Agreements of the Company. The Company agrees with
the several Underwriters that:
(a) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement,
the Company will file the Prospectus with the Commission pursuant to
and in accordance with subparagraph (1) (or, if applicable and if
consented to by CS First Boston, subparagraph (4)) of Rule 424(b) not
later than the earlier of (A) the second business day following the
execution and
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delivery of this Agreement or (B) the fifteenth business day after the
Effective Date of the Initial Registration Statement. The Company will
advise CS First Boston promptly of any such filing pursuant to Rule 424(b).
If the Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement and an additional registration
statement is necessary to register a portion of the Securities under the
Act but the Effective Time thereof has not occurred as of such execution
and delivery, the Company will file the additional registration statement
or, if filed, will file a post-effective amendment thereto with the
Commission pursuant to and in accordance with Rule 462(b) on or prior to
10:00 P.M., New York time, on the date of this Agreement or, if earlier, on
or prior to the time the Prospectus is printed and distributed to any
Underwriter, or will make such filing at such later date as shall have been
consented to by CS First Boston.
(b) The Company will advise CS First Boston promptly of any
proposal to amend or supplement the initial or any additional
registration statement as filed or the related prospectus or the
Initial Registration Statement, Additional Registration Statement (if
any) or the Prospectus and will not effect such amendment or
supplementation without CS First Boston's prior consent; and the
Company will also advise CS First Boston promptly of the
effectiveness of each Registration Statement (if its Effective Time
is subsequent to the execution and delivery of this Agreement) and of
any amendment or supplementation of a Registration Statement or the
Prospectus and of the institution by the Commission of any stop order
proceedings in respect of a Registration Statement and will use its
best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act in connection
with sales by any Underwriter or dealer, any event occurs or
condition exists as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act, the Company will promptly notify
CS First Boston of such event and will promptly prepare and file with
the Commission, at its own expense, an amendment or supplement which
will correct such statement or omission or an amendment which will
effect such compliance. Neither CS First Boston's consent to, nor
the Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the Effective Date of
the Initial Registration Statement (or, if later, the Effective Date
of the Additional Registration Statement) which will satisfy the
provisions of Section 11(a) of the Act. For the purpose of the
preceding sentence, "Availability Date" means the 45th day after the
end of the fourth fiscal quarter following the fiscal quarter that
includes such Effective Date, except that, if such fourth fiscal
quarter is the last quarter of the Company's fiscal year,
"Availability Date" means the 90th day after the end of such fourth
fiscal quarter.
11
(e) The Company will furnish to the Representatives copies of
each Registration Statement (at least three of which will be signed
and will include all exhibits and a signed accountant's report of
Coopers & ▇▇▇▇▇▇▇), each related preliminary prospectus, and, so long
as delivery of a prospectus relating to the Securities is required to
be delivered under the Act in connection with sales by any
Underwriter or dealer, the Prospectus and all amendments and
supplements to such documents, in each case and in such quantities as
CS First Boston requests. The Prospectus shall be so furnished on or
prior to 10:00 A.M., New York time, on the business day following the
later of the execution and delivery of this Agreement or the
Effective Time of the Initial Registration Statement. All other such
documents shall be so furnished as soon as available. The Company
will pay the expenses of printing and distributing to the
Underwriters all such documents.
(f) The Company will, in cooperation with CS First Boston and
counsel for the Underwriters, arrange for the qualification of the
Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as CS First Boston
designates and will continue such qualifications in effect so long as
required for the distribution.
(g) During the period of five years hereafter, the Company
will furnish to the Representatives and, upon request, to each of the
other Underwriters, as soon as practicable after the end of each
fiscal year, a copy of its annual report to stockholders for such
year; and the Company will furnish to the Representatives (i) as soon
as available, a copy of each report and any definitive, proxy
statement of the Company filed with the Commission under the
Securities Exchange Act of 1934, as amended, or mailed to
stockholders and (ii) from time to time, such other information
concerning the Company as CS First Boston may reasonably request.
(h) The Company will pay all expenses incident to the
performance of its obligations under this Agreement and will
reimburse the Underwriters (if and to the extent incurred by them)
for any filing fees and other expenses (including reasonable fees and
disbursements of counsel) incurred by them in connection with the
qualification of the Securities for sale and the printing of
memoranda relating thereto, for any fees charged by investment rating
agencies for the rating of the Securities, for the filing fee and the
related fees and expenses of counsel for the Underwriters in
connection with any filings required to be made with the National
Association of Securities Dealers, Inc. relating to the Securities,
for any travel expenses of the Company's officers and employees and
any other expenses of the Company in connection with attending or
hosting meetings with prospective purchasers of the Securities and
for expenses incurred in printing and distributing preliminary
prospectuses and the Prospectus (including any amendments and
supplements thereto) to the Underwriters.
(i) The Company will apply the net proceeds of the offering
and sale of the Securities contemplated hereunder in the manner set
forth in the Prospectus under the caption "Use of Proceeds."
6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the
Securities on the Closing Date will be subject to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions precedent:
12
(a) The Representatives shall have received a letter, dated
the date of delivery thereof (which, if the Effective Time of the
Initial Registration Statement is prior to the execution and delivery
of this Agreement, shall be on or prior to the date of this Agreement
or, if the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement, shall be
prior to the filing of the amendment or post-effective amendment to
the registration statement to be filed shortly prior to such
Effective Time), of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. confirming that they are
independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating to
the effect that:
(i) in their opinion the financial statements and
schedules examined by them and included in the Registration
Statements comply as to form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review
of interim financial information as described in Statement of
Auditing Standards No. 71, Interim Financial Information, on
the unaudited financial statements included in the Registration
Statements;
(iii) on the basis of the review referred to in clause
(ii) above, a reading of the latest available interim financial
statements of the Company, a reading of the minutes of all
meetings of the stockholders and directors (including each
committee thereof) of the Company and its subsidiaries,
inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified
procedures, nothing came to their attention that caused them to
believe that:
(A) the unaudited financial statements included in
the Registration Statements do not comply as to form in
all material respects with the applicable accounting
requirements of the Act and the related published Rules
and Regulations or any material modifications should be
made to such financial statements for them to be in
conformity with generally accepted accounting principles;
(B) the information set forth under the caption
"Selected Financial Information" in the Prospectus does
not agree with the amounts set forth in the financial
statements from which it was derived or was not
determined on a basis substantially consistent with that
of the corresponding amounts in the audited financial
statements included in the Registration Statements and
the Prospectus;
(C) at the date of the latest available balance
sheet read by such accountants, or at a subsequent
specified date not more than five days prior to the date
of this Agreement, there was any decrease in
stockholders' equity or change in the capital stock or
any increase in short-term indebtedness or long-term debt
of the Company and its consolidated subsidiaries or, at
the date of the latest available balance sheet read by
such accountants, there was any decrease in consolidated
net current assets or net assets, as
13
compared with amounts shown on the latest balance sheet included in the
Registration Statements and the Prospectus; or
(D) for the period from the closing date of the
latest income statement included in the Registration
Statements and the Prospectus to the closing date of the
latest available income statement read by such
accountants, there were any decreases, as compared with
the corresponding period of the previous year and with
the period of corresponding length ended the date of the
latest income statement included in the Registration
Statements and the Prospectus, in consolidated revenues,
or consolidated income from continuing operations or
consolidated net income or net income per share, or in
the ratio of earnings to fixed charges, or in the total
or per share amounts of net earnings, or any increases or
decreases, as the case may be, in other items specified
by the Underwriters;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts), numerical data
and other financial information contained in the Registration
Statements and the Prospectus (in each case to the extent that
such dollar amounts, percentages, numerical data and other
financial information are derived from the general accounting
records of the Company and its subsidiaries subject to the
internal controls of the Company's accounting system or are
derived directly from such records by analysis or computation)
with the results obtained from inquiries, a reading of such
general accounting records and other procedures specified in
such letter and have found such dollar amounts, percentages,
numerical data and other financial information to be in
agreement with such results.
For purposes of this subsection, (i) if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement, "Registration Statements" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective
amendment to be filed shortly prior to its Effective Time, (ii) if the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement but the Effective Time of the
Additional Registration Statement is subsequent to such execution and
delivery, "Registration Statements" shall mean the Initial Registration
Statement and the additional registration statement as proposed to be filed
or as proposed to be amended by the post-effective amendment to be filed
shortly prior to its Effective Time, and (iii) "Prospectus" shall mean the
prospectus included in the Registration Statements. All financial
statements and schedules included in material incorporated by reference
into the Prospectus shall be deemed included in the Registration Statements
for purposes of this subsection.
(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this
Agreement, such Effective Time shall have occurred not later than
10:00 P.M., New York time, on the date of this Agreement or such
later date as shall have been consented to by CS First Boston. If
the Effective Time of the Additional Registration Statement (if any)
is not prior to the execution and delivery of this Agreement, such
Effective Time shall have occurred not later than 10:00 P.M., New
York time, on the date of this Agreement or, if
14
earlier, the time the Prospectus is printed and distributed to any
Underwriter, or shall have occurred at such later date as shall have been
consented to by CS First Boston. If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, the Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) of this
Agreement. Prior to such Closing Date, no stop order suspending the
effectiveness of a Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Representatives, shall be contemplated by
the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or any event involving a prospective change, in or
affecting the condition (financial or other), business, prospects or
results of operations of the Company or its subsidiaries which, in
the judgment of a majority in interest of the Underwriters including
the Representatives, is material and adverse and makes it impractical
or inadvisable to proceed with completion of the public offering or
the sale of and payment for the Securities; (ii) any downgrading in
the rating of any debt securities of the Company by any "nationally
recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act), or any public announcement that any
such organization has under surveillance or review its rating of any
debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implications of
a possible downgrading, of such rating); (iii) any suspension or
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market; (iv) any
banking moratorium declared by U.S. Federal or New York authorities;
or (v) any outbreak or escalation of major hostilities in which the
United States is involved, any declaration of war by Congress or any
other substantial national or international calamity or emergency if,
in the judgment of a majority in interest of the Underwriters
including the Representatives, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical
or inadvisable to proceed with completion of the public offering or
the sale of and payment for the Securities.
(d) The Representatives shall have received the opinion, dated
the Closing Date, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the
Company, to the effect of the matters set forth on Exhibit II hereto.
(e) The Representatives shall have received the opinion,
dated the Closing Date, of ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., Vice President,
General Counsel and Secretary of the Company, to the effect of the
matters set forth on Exhibit III hereto.
(f) The Representatives shall have received from ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the validity of the
Securities delivered on the Closing Date, the Registration
Statements, the Prospectus and other related matters as the
Representatives may require, and the Company shall have furnished to
such counsel such documents or certificates as they request for the
purpose of enabling them to pass upon such matters.
15
(g) The Representatives shall have received a certificate,
dated the Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which
such officers, to the best of their knowledge after reasonable
investigation, shall state that: (i) the representations and
warranties of the Company in this Agreement are true and correct;
(ii) the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date; (iii) no stop order suspending the
effectiveness of any Registration Statement has been issued and no
proceedings for that purpose have been instituted or are contemplated
by the Commission; (iv) the Additional Registration Statement (if
any) satisfying the requirements of subparagraphs (1) and (3) of Rule
462(b) was filed pursuant to Rule 462(b), including payment of the
applicable filing fee in accordance with Rule 111(a) or (b) under the
Act, prior to the time the Prospectus was printed and distributed to
any Underwriter; (v) subsequent to the dates as of which information
is given in the Registration Statements and the Prospectus, there has
been no material adverse change, nor any development that would
individually or in the aggregate result in a material adverse change,
in the condition (financial or other), business, prospects or results
of operations of the Company and its subsidiaries taken as a whole;
and (vi) they have carefully examined the Registration Statements and
the Prospectus and neither any Registration Statement nor the
Prospectus or any amendment or supplement thereto, as of their
respective effective or issue dates, contained any untrue statement
of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading.
(h) The Representatives shall have received a letter, dated
the Closing Date, of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. which meets the
requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more
than five days prior to the Closing Date for the purposes of this
subsection.
(i) The transactions described in the Prospectus under the
caption "Management's Discussion and Analysis of the Financial
Condition and Results of Operations -- Liquidity and Financial
Condition" relating to the obtaining of waivers with respect to
certain covenants under the Company's Note Agreement dated as of
September 1, 1992, as amended, the termination of the Company's
$45.0 million bank credit facility due 1998 and the obtaining of a
new $45.0 million bank credit facility due 1996 shall have been duly
authorized by the Company and consummated; all of the waivers or
amendments required to consummate such transactions shall have been
duly obtained; and no event shall occur that would adversely affect
the consummation of such transactions or validity of such waivers or
amendments.
(j) The Representatives shall have received such other
opinions, certificates, letters and other documents from and on
behalf of the Company as the Representatives reasonably request.
All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof only if they are
reasonably satisfactory in form and substance to CS First Boston and
counsel for the Underwriters. The Company will furnish the Representatives
with such conformed copies of such opinions, certificates, letters and
documents as the Representatives reasonably request. CS First Boston may
in its sole discretion waive on behalf of the Underwriters compliance with
any conditions to the obligations of the Underwriters hereunder.
16
7. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists
of the information described as such in subsection (b) below.
(b) Each Underwriter will severally and not jointly indemnify
and hold harmless the Company against any losses, claims, damages or
liabilities to which the Company may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any
Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are
based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives specifically for use therein, and will reimburse any legal
or other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed that
the only such information furnished by any Underwriter consists of (i) the
legend concerning stabilization appearing on the inside front cover page of
the preliminary prospectus and the Prospectus, (ii) the list of the names
of the Underwriters and number of Securities to be purchased by each
Underwriter appearing in the preliminary prospectus and the Prospectus
under the caption "Underwriting," and (iii) concession and reallowance
figures appearing in the preliminary prospectus and the Prospectus in the
third paragraph under the caption "Underwriting."
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a) or (b) above, notify the indemnifying party of
the commencement thereof; but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party otherwise than under subsection (a) or (b) above. In
case any such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying
17
party), and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party will not be liable to such indemnified party under this Section for
any legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release
of such indemnified party from all liability on any claims that are the
subject matter of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on
the other from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company
on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result
of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of
this subsection (d). Notwithstanding the provisions of this subsection
(d), no Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Securities underwritten by
it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
The Underwriters' obligations in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations and not
joint.
(e) The obligations of the Company under this Section shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the
Company, to each officer of the Company who has signed a Registration
Statement and to each person, if any, who controls the Company within the
meaning of the Act.
18
8. Default of Underwriters. If any Underwriter or
Underwriters default in their obligations to purchase Securities hereunder
on the Closing Date and the aggregate principal amount of Securities that
such defaulting Underwriter or Underwriters agreed but failed to purchase
does not exceed 10% of the total principal amount of Securities that the
Underwriters are obligated to purchase on the Closing Date, CS First Boston
may make arrangements satisfactory to the Company for the purchase of such
Securities by other persons, including any of the Underwriters, but if no
such arrangements are made by the Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Securities that such
defaulting Underwriters agreed but failed to purchase on the Closing Date.
If any Underwriter or Underwriters so default and the aggregate principal
amount of Securities with respect to which such default or defaults occur
exceeds 10% of the total principal amount of Securities that the
Underwriters are obligated to purchase on the Closing Date and arrangements
satisfactory to CS First Boston and the Company for the purchase of such
Securities by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Company, except as provided in Section 9.
As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters
set forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation, or statement as to the results
thereof, made by or on behalf of any Underwriter, the Company or any of
their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Securities. If
this Agreement is terminated pursuant to Section 8 or if for any reason the
purchase of the Securities by the Underwriters is not consummated, the
Company shall remain responsible for the expenses to be paid or reimbursed
by it pursuant to Section 5 and the respective obligations of the Company
and the Underwriters under Section 7 shall remain in effect, and if any
Securities have been purchased hereunder the representations and warranties
in Section 2 and all obligations under Section 5 shall also remain in
effect. If the purchase of the Securities by the Underwriters is not
consummated for any reason other than solely because of the termination of
this Agreement pursuant to Section 8 or the occurrence of any event
specified in clause (iii), (iv) or (v) of Section 6(c), the Company will
reimburse the Underwriters for all out-of-pocket expenses (including fees
and disbursements of counsel) reasonably incurred by them in connection
with the offering of the Securities.
10. Notices. All communications hereunder will be in writing
and, if sent to the Underwriters, will be mailed, delivered or telegraphed
and confirmed to the Representatives, c/o CS First Boston Corporation, Park
Avenue Plaza, New York, N.Y. 10055, Attention: Investment Banking
Department - Transactions Advisory Group, or, if sent to the Company, will
be mailed, delivered or telegraphed and confirmed to it at Quaker State
Corporation, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇
▇. ▇▇▇▇▇▇, Esq., Vice President, General Counsel and Secretary; provided,
however, that any notice to an Underwriter pursuant to Section 7 will be
mailed, delivered or telegraphed and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and
the officers and directors and controlling persons referred to in Section
7, and no other person will have any right or obligation hereunder.
19
12. Representation of Underwriters. The Representatives will
act for the several Underwriters in connection with this financing, and any
action under this Agreement taken by the Representatives jointly or by CS
First Boston will be binding upon all the Underwriters.
13. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same
Agreement.
14. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without
regard to principles of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of
the Federal and state courts in the Borough of Manhattan in The City of New
York in any suit or proceeding arising out of or relating to this Agreement
or the transactions contemplated hereby.
20
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one
of the counterparts hereof, whereupon it will become a binding agreement
between the Company and the several Underwriters in accordance with its
terms.
Very truly yours,
QUAKER STATE CORPORATION
By ______________________________
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
CS FIRST BOSTON CORPORATION
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
Acting on behalf of themselves and as the
Representatives of the several Underwriters.
By CS FIRST BOSTON CORPORATION
By _____________________________
Name:
Title:
21
SCHEDULE A
Principal Amount
Underwriter of Securities
CS First Boston Corporation . . . . . . . . . . . . . . . . . . . . . . . . $
▇.▇. ▇▇▇▇▇▇ Securities Inc. . . . . . . . . . . . . . . . . . . . . . . . .
Chemical Securities Inc. . . . . . . . . . . . . . . . . . . . . . . . . .
NationsBanc Capital Markets, Inc. . . . . . . . . . . . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . . . . . . . . . . . $100,000,000
===========
22
EXHIBIT I
LIST OF MATERIAL SUBSIDIARIES
All of the following material subsidiaries are 100% by Quaker
State Corporation unless otherwise indicated:
Jurisdiction
Name of Material Subsidiary of Incorporation
McQuik's Oilube, Inc.(1) Delaware
Q Lube, Inc.(1) Delaware
Lubeco, Inc.(2) Delaware
Truck-Lite Co., Inc.(1) New York
T-L Automotive Industries, Inc.(3) Delaware
Truck-Lite International, Inc.(3) Delaware
Specialty Oil Company, Inc. Delaware
Tye Distributing Co., Inc. Texas
Westland Oil Company, Inc. Louisiana
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(1) 100% owned by Quaker State Investment Corporation
(2) 100% owned by Q Lube, Inc.
(3) 100% owned by Truck-Lite Co., Inc.
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EXHIBIT II
OPINION OF ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
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EXHIBIT III
OPINION OF ▇▇▇▇ ▇. ▇▇▇▇▇▇
