EXHIBIT 1.2
INTERNATIONAL SPECIALTY PRODUCTS INC.
___% Senior Notes due ___
FORM OF DEBT SECURITIES PURCHASE AGREEMENT
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[DATE]
Name(s) of Managing Underwriter
Address(es) of Managing Underwriter
Ladies and Gentlemen:
International Specialty Products Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to the Underwriters listed on Schedule I
hereto (the "Underwriters") $___________ aggregate principal amount at maturity
of its ___% Senior Notes due ____ (the "Firm Notes"). The Firm Notes are to be
issued pursuant to an indenture (the "Indenture") between the Company and
______________, as trustee (the "Trustee"). The Company also proposes to issue
and sell to the several Underwriters not more than $_________ aggregate
principal amount at maturity of the Company's ___% Senior Notes due __________
(the "Option Notes") to cover overallotments if, and to the extent, such option
is exercised pursuant to the right to purchase such Option Notes granted in
Section 2 hereof. The Firm Notes and the Option Notes are hereinafter referred
to as the "Notes."
The Company meets the requirements for the use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has prepared and filed with
the Securities and Exchange Commission (the "Commission"), pursuant to the Act
and the rules and regulations promulgated by the Commission thereunder (the
"Regulations"), and the Trust Indenture Act of 1939, as amended (the "TIA"), a
registration statement on Form S-3 (Registration No. 333- 59593), including the
related Base Prospectus (as defined below) or prospectuses, covering the
registration of, among other securities, the Notes under the Act, and the
offering thereof from time to time in accordance with Rule 415 of the Act. Such
registration statement has been declared effective by the Commission. The
Company will prepare and file with the Commission, pursuant to Rules 415 and
424(b)(2), (3) or (5), a prospectus supplement to the form of prospectus
included in such registration statement reflecting the terms of the Notes and
the terms
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NYFS01...:\01\47201\0041\2011\AGR7228A.36D
of the offering thereof. As filed, such final prospectus supplement shall
include all required information with respect to the Notes and the offering
thereof and, except to the extent the Underwriters shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to you
prior to the Execution Time (as defined below) 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 Base Prospectus and any
Preliminary Prospectus (as defined below)) as the Company has advised you, prior
to the Execution Time, will be included or made therein.
The terms which follow, when used in this Agreement, shall have the
meanings indicated:
(i) "Effective Date" means the date that the Registration Statement
and any post-effective amendment or amendments thereto are declared
effective by the Commission.
(ii) "Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
(iii) "Base Prospectus" shall mean the prospectus referred to above
contained in the Registration Statement relating to all offerings of
securities under the Registration Statement.
(iv) "Preliminary Prospectus" shall mean any preliminary prospectus
supplement to the Base Prospectus which describes the Notes and the
offering thereof and is used prior to filing of the Final Prospectus.
(v) "Final Prospectus" shall mean the prospectus supplement relating
to the Notes that is first filed pursuant to Rule 424(b) after the
Execution Time, together with the Base Prospectus.
(vi) "Registration Statement" shall mean the registration statement
referred to above, as last amended prior to the time the same was declared
effective by the Commission, including all exhibits and schedules thereto
and all documents (including financial statements, financial schedules and
exhibits) incorporated therein by reference.
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(vii) "Rule 415," "Rule 424" and "Regulation S-K" refer to such
rules or regulations under the Act.
Any reference herein to the Registration Statement, the Base
Prospectus, any Preliminary 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 that were filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), on or before the effective date of the
Registration Statement, or the issue date of the Base Prospectus, any
Preliminary Prospectus or the Final Prospectus, as the case may be, except that
any such documents shall be deemed to be modified or superseded to the extent
that a statement contained in such Base Prospectus, Preliminary Prospectus or
Final Prospectus or in any other subsequently filed document that also is or is
deemed to be incorporated by reference therein modifies or supersedes such
statement (all such documents being hereinafter referred to as the "Incorporated
Documents").
The Company understands that the Underwriters propose to make a
public offering of their respective portion of the Notes on the terms and in the
manner set forth in the Final Prospectus, as soon as the Underwriters deem
advisable after this Agreement has been executed and delivered.
1. Representations and Warranties of the Company.
(a) The Company represents and warrants to, and agrees with, the
Underwriters as follows:
(i) The Registration Statement has become effective under the Act;
no stop order suspending the effectiveness of the Registration Statement
is in effect; and no proceedings for such purpose are pending before or,
to its knowledge, threatened by the Commission.
(ii) On the Effective Date, and at all times subsequent thereto and
including the Closing Date, or the Option Closing Date, if any (each as
defined below), and during such longer period as the Final Prospectus may
be required to be delivered in connection with sales by the Underwriters
or a dealer, and during such longer period until any post-effective
amendment to the Registration Statement becomes effective, the
Registration Statement (including any registration statement filed with
the Commission pursuant to Rule 462(b)) and the Final Prospectus (as
amended or supplemented if the Company shall have filed with the
Commission an amendment or supplement thereto) complied, and will
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comply, in all material respects with the applicable provisions of the Act
and the Regulations, and did not, and will not, contain an 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 made
therein (in the case of the Base Prospectus, Preliminary Prospectus or
Final Prospectus, in light of the circumstances under which they were
made) not misleading. No representation and warranty, however, is made in
this paragraph (a)(1)(ii) with respect to written information contained in
or omitted from the Registration Statement, the Base Prospectus, any
Preliminary Prospectus or the Final Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with information
furnished to the Company by or on behalf of you with respect to the
Underwriters and the plan of distribution of the Notes expressly for use
in connection with the preparation thereof.
(iii) Each of the Incorporated Documents, when the same was first
filed with the Commission, complied in all material respects with the
applicable provisions of the Act, the Regulations, the Exchange Act and
the regulations promulgated thereunder or the TIA, as applicable, and any
further documents so filed and incorporated by reference will, when they
are filed with the Commission, comply in all material respects with the
applicable provisions of the Act, the Exchange Act or the TIA and such
regulations. None of such filed documents when they were filed (or, if an
amendment with respect thereto was filed, when such amendment was filed),
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of circumstances under which they were made,
not misleading, and no such further document, when it is filed with the
Commission, will contain an untrue statement of a material fact required
to be stated therein or necessary to make the statements made therein, in
light of the circumstances under which they were made, not misleading.
(iv) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware
with corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and as shall be described in the Final Prospectus; and the
Company is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or
the conduct of
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business, except where the failure to so qualify would not have a material
adverse effect on the condition, financial or otherwise, or on the results
of operations, business or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect").
(v) Each significant subsidiary (as such term is defined in Rule
405 of the Regulations) (the "Significant Subsidiaries") 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, has
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Registration Statement and as
shall be described in the Final Prospectus and is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not have, singly or in the
aggregate, a Material Adverse Effect. All of the issued and outstanding
shares of capital stock of each of the Significant Subsidiaries have been
duly authorized and validly issued and are fully paid and nonassessable
and are owned by the Company, directly or indirectly, and in each case
free and clear of all liens, security interests, pledges, charges,
encumbrances, stockholders' agreements and voting trusts ("Liens"), other
than as set forth in the Registration Statement and as shall be described
in the Final Prospectus. Except as may be set forth in the Final
Prospectus, there are no outstanding rights, subscriptions, warrants,
calls, options or other agreements of any kind to which the Company is a
party with respect to the capital stock of any Significant Subsidiary.
(vi) All of the issued and outstanding shares of capital stock of
the Company have been duly authorized and validly issued and are fully
paid and non-assessable. Except as may be set forth in the Final
Prospectus, there are no outstanding rights, subscriptions, warrants,
calls, options or other agreements of any kind to which the Company is a
party with respect to its capital stock.
(vii) Since the respective dates as of which information is given in
the Registration Statement and the Final Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the results of operations,
business or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business (a "Material Adverse Change"), (B) there have been no
transactions entered into by the Company or any of its Significant
Subsidiaries, other than those in the ordinary course of business, which
are material with respect to the condition, financial or
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otherwise, or to the results of operations, business or business prospects
of the Company and its subsidiaries considered as one enterprise, and (C)
there has been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock, except for regular
quarterly dividends, if any.
(viii) The Company has the corporate power and authority to enter
into and perform its obligations under this Agreement and the Indenture,
and to issue, sell and deliver the Notes. This Agreement has been duly
authorized, executed and delivered by the Company.
(ix) The Notes have been duly authorized by the Company. The Notes
will, when executed, authenticated, issued and delivered in the manner
provided for in the Indenture and, when sold and paid for as provided in
this Agreement, constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture and enforceable against
the Company in accordance with their terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and similar laws affecting creditors' rights and remedies generally and
subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing
(regardless of whether enforcement is sought in a proceeding in equity or
at law). The Notes will conform in all material respects to the
description thereof which shall be contained in the Final Prospectus under
the heading "Description of Debt Securities."
(x) The Indenture has been duly authorized by the Company. The
Indenture will, when executed (assuming due execution by the Trustee),
constitute a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and remedies
generally and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and
fair dealing (regardless of whether enforcement is sought in a proceeding
in equity or at law). The Indenture will conform in all material respects
to the description thereof which shall be contained in the Final
Prospectus under the heading "Description of Debt Securities."
(xi) Neither the Company nor any of its Significant Subsidiaries is
in violation of its charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company or any of
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its Significant Subsidiaries is a party or by which it or any of them may
be bound, or to which any of the property or assets of the Company or any
of its Significant Subsidiaries is subject, the effect of which violation
or default in performance or observance, singly or in the aggregate, would
have a Material Adverse Effect; and the execution, delivery and
performance of this Agreement and the Indenture, and the issuance,
authentication and sale of the Notes and the consummation of the
transactions contemplated hereby and thereby will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any of its Significant Subsidiaries pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company or any of its Significant
Subsidiaries is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any of its
Significant Subsidiaries is subject, or violate any applicable law,
administrative regulation or administrative or court decree, in each case,
the effect of which conflict, breach, default, lien, charge, encumbrance
or violation, singly or in the aggregate, would have a Material Adverse
Effect, nor will such action result in any violation of the provisions of
the charter or by-laws of the Company or any of its Significant
Subsidiaries.
(xii) Except as described in the Registration Statement and as shall
be described in the Final Prospectus, there is no action, suit or
proceeding before or by any court or governmental agency or body, domestic
or foreign, now pending or, to the knowledge of the Company, threatened
against or affecting the Company or any of its Significant Subsidiaries,
which would, singly or in the aggregate, result in any Material Adverse
Change or which would materially and adversely affect the consummation of
this Agreement or the performance by the Company of the Indenture or the
Notes; all pending legal or governmental proceedings to which the Company
or any of its subsidiaries is a party or of which any of their respective
properties or assets is the subject which are not disclosed in the
Registration Statement or shall be described in the Final Prospectus,
including ordinary routine litigation incidental to the business, are,
considered in the aggregate, not material to the condition, financial or
otherwise, or to the results of operations, business or business prospects
of the Company and its Significant Subsidiaries considered as one
enterprise; and there have been no material developments with respect to
any action, suit or proceeding, whether or not such action, suit or
proceeding is described in the Registration Statement or shall be
described in the Final Prospectus, which, singly or in the aggregate,
would result in a Material Adverse Change.
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(xiii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, the accountants who certified the
financial statements and supporting schedules included or incorporated by
reference in the Registration Statement and the Final Prospectus are
independent public accountants as required by the Act and the Regulations.
(xiv) The financial statements, including the notes thereto,
included in or incorporated by reference in the Registration Statement and
the Final Prospectus present fairly in all material respects the financial
position of the Company and its subsidiaries and of the Company's
predecessors as of the dates indicated and the results of their operations
for the periods specified; except as otherwise stated in the Registration
Statement and as shall be stated in the Final Prospectus, said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis.
(xv) The pro forma financial information of the Company and its
subsidiaries and of the Company's predecessors included in or incorporated
by reference in the Final Prospectus presents fairly in all material
respects the information shown therein, and has been prepared on the basis
described in the Final Prospectus.
(xvi) The Indenture conforms in all material respects with the
requirements of the TIA applicable to indentures to be qualified
thereunder.
(xvii) Except as set forth in the Registration Statement or as shall
be described in the Final Prospectus, neither the Company nor any of its
Significant Subsidiaries has violated, or is in violation of, any foreign,
federal, state or local law or regulation relating to the protection of
human health and safety, the environment or hazardous or toxic substances
or wastes, pollutants or contaminants ("Environmental Laws"), nor any
federal or state laws relating to discrimination in the hiring, promotion
or pay of employees nor any applicable federal or state wages and hours
laws, nor any provisions of the Employee Retirement Income Security Act or
the rules and regulations promulgated thereunder, which, in either case,
singly or in the aggregate, would result in any Material Adverse Change.
(xxviii) Each of the Company and its Significant Subsidiaries has
such permits, licenses, franchises and authorizations of governmental or
regulatory authorities ("permits"), including, without limitation, under
any applicable Environmental Laws, as are necessary to own, lease and
operate its respective properties and to conduct its business; each of the
Company and its Significant Subsidiaries has fulfilled and performed
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all of its obligations with respect to such permits and no event has
occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material
impairment of the rights of the holder of any such permit, except, in any
case, singly or in the aggregate, where the failure to have such permits
or fulfill and perform such obligations would not have a Material Adverse
Effect; such permits contain no restrictions that are materially
burdensome to the Company or its Significant Subsidiaries.
(xix) In the ordinary course of their business, the Company and its
Significant Subsidiaries conduct reviews of the effect of Environmental
Laws on the business, operations and properties of the Company and its
Significant Subsidiaries, in the course of which they identify and
evaluate associated costs and liabilities (including, without limitation,
any capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such reviews,
except as set forth in the Registration Statement or the Final Prospectus,
the Company has reasonably concluded that such associated costs and
liabilities would not, singly or in the aggregate, have a Material Adverse
Effect.
(xx) The Company is not now, nor after sale of the Notes to be sold
hereunder and application of the net proceeds from such sale as shall be
described in the Final Prospectus under the caption "Use of Proceeds" will
it be, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(xxi) Each Preliminary Prospectus filed pursuant to Rule 424 under
the Act complied when so filed in all material respects with the Act and
the Regulations.
(xxii) There are no contracts, agreements or understandings between
the Company and any person granting such person the right to require the
Company to file a registration statement under the Act with respect to any
securities of the Company (other than registration statements that have
previously been filed) or to require the Company to include such
securities with the Debt Securities and Common Stock registered pursuant
to the Registration Statement.
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(b) Any certificate signed by any officer of the Company and
delivered to the Underwriters or to counsel for the Underwriters pursuant to the
terms of this Agreement shall be deemed a representation and warranty by such
party to each Underwriter as to the matters covered thereby.
2. Purchase and Sale of the Notes; Delivery and Payment.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties of the Company herein set forth:
(i) the Company agrees to sell to the Underwriters, and the Underwriters
agree, severally and not jointly, to purchase from the Company, at an aggregate
purchase price of _____% of the principal amount thereof (the "Purchase Price"),
the aggregate principal amount at maturity of the Firm Notes set forth opposite
such Underwriter's name on Schedule I hereto.
(ii) the Company hereby agrees to sell to the Underwriters, and the
Underwriters shall have a one-time right to purchase, severally and not jointly,
up to an aggregate of $___________ principal amount at maturity of Option Notes
at the Purchase Price. Option Notes may be purchased solely for the purpose of
covering overallotments made in connection with the Firm Notes. If any Option
Notes are to be purchased, each Underwriter agrees, severally and not jointly,
to purchase the principal amount at maturity of Option Notes (subject to such
adjustments to eliminate the issuance of Option Notes in denominations other
than integral multiples of $1,000 principal amount at maturity as the
Underwriters may determine) that bears the same proportion to the principal
amount at maturity of Option Notes to be purchased as the principal amount at
maturity of Firm Notes set forth on Schedule I hereto opposite the name of such
Underwriter bears to the total principal amount at maturity of Firm Notes.
(b) Delivery and payment for the Notes shall be as follows:
(i) Delivery of and payment for the Firm Notes shall be made at the
offices of ___________________ at 10:00 A.M., New York City time, on
_______________, or such later date and time, if any, as the Underwriters and
the Company shall agree (such date and time of delivery and payment for the Firm
Notes being herein called the "Closing Date"). Delivery of the Firm Notes shall
be made to the Underwriters against payment by the Underwriters of the Purchase
Price by wire transfer of immediately available funds to an account specified by
the Company not less than two full business days in advance of the Closing Date.
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(ii) Delivery of and payment for any Option Notes to be sold by the
Company shall be made at the offices of __________________ at 10:00 A.M., New
York City time, on such date (which may be the same as the Closing Date but
shall in no event be earlier than the Closing Date nor later than ten business
days after the giving of the notice hereinafter referred to) as shall be
designated in a written notice from the Underwriters to the Company of their
determination to purchase an amount, specified in said notice, of Option Notes.
Delivery of the Option Notes shall be made to the Underwriters against payment
by the Underwriters of the purchase price thereof by wire transfer of
immediately available funds payable to the order of the Company. The time and
date of such payment are hereinafter referred to as the "Option Closing Date."
The notice of the determination to exercise the option to purchase Option Notes
and of the Option Closing Date may be given at any time within 30 days after the
date of this Agreement, but in any event shall be given at least two business
days prior to the Option Closing Date.
Certificates for the Firm Notes and the Option Notes shall be in
definitive or global form and registered in such names and in such denominations
as you, on behalf of the Underwriters, shall request in writing not less than
two full business days prior to the Closing Date or the Option Closing Date, as
the case may be. The Firm Notes and any Option Notes shall be delivered to you
on the Closing Date or the Option Closing Date, as the case may be, with any
transfer taxes payable in connection with the transfer of the Notes to you duly
paid, against payment of the Purchase Price therefor.
3. Covenants of the Company. The Company covenants and agrees with
each of the Underwriters as follows:
(a) The Company will promptly advise you (on behalf of the
Underwriters), and confirm such advice in writing, (i) when any post-effective
amendment to the Registration Statement has become effective, (ii) of any
request by the Commission for any amendment of or supplement to the Registration
Statement or Final Prospectus or for any additional information, (iii) of the
initiation or threatening of any proceedings for, or receipt by the Company of
any notice with respect to, the suspension of the qualification of the Notes for
sale in any jurisdiction or the issuance by the Commission of any order
suspending the effectiveness of the Registration Statement and (iv) of receipt
by the Company or any representative of or attorney for the Company of any other
communications from the Commission relating to the Company, the Registration
Statement, any Preliminary Prospectus, the Final Prospectus or the transactions
contemplated by this Agreement. The Company will make every reasonable effort to
prevent the issuance of a stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto and, if any such
stop order is issued, to obtain its lifting as soon as possible. The Company
will not file any amendment to the Registration Statement or any
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amendment of or supplement to the Final Prospectus before or after the Effective
Date to which the Representative shall reasonably object in writing after being
timely furnished in advance a copy thereof unless the Company shall conclude,
upon the advice of counsel, that any such amendment must be filed at a time
prior to obtaining such consent.
(b) During the period of time when a prospectus relating to the
Notes is required to be delivered hereunder or under the Act or the Regulations,
the Company shall comply with all requirements imposed upon it by the Act and
the TIA, as now existing or hereafter amended, and by the Regulations, as from
time to time in force, so far as may be necessary to permit the continuance of
sales of and dealings in the Notes as contemplated by the provisions thereof and
the Final Prospectus. If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event shall have occurred as a
result of which, in the judgment of the Company, you or your counsel, the Final
Prospectus as then amended or supplemented shall contain 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 made therein, in the light of the
circumstances under which they were made, not misleading, or if it shall be
necessary at any time to amend the Registration Statement or supplement the
Final Prospectus to comply with the Act, the TIA and the Regulations, the
Company shall notify the Representative promptly and prepare and file with the
Commission an appropriate post-effective amendment to the Registration Statement
or supplement to the Final Prospectus that will correct such untrue statement or
such omission and will use its best efforts to have any such post-effective
amendment to the Registration Statement declared effective as soon as possible.
(c) The Company shall promptly deliver to you a copy of a
manually-signed Registration Statement, including exhibits and all documents
incorporated by reference therein and all amendments thereto, and to each other
Underwriter and those persons (including counsel for the Underwriters) whom you
identify to the Company, such number of conformed copies of the Registration
Statement, each Preliminary Prospectus, the Final Prospectus, all amendments of
and supplements to such documents, if any, and all documents incorporated by
reference in the Registration Statement and the Final Prospectus or any
amendment thereof or supplement thereto, without exhibits, as you reasonably may
request.
(d) If and to the extent such qualification or registration may be
necessary, the Company shall cooperate with the Underwriters and their counsel
in connection with their efforts to qualify or register the Notes for sale under
the securities laws of such jurisdictions as you shall request, will execute
such applications and documents and furnish such information as may be
reasonably required for such purpose and will comply with such laws so as to
continue such qualification in effect for so long as may be required to complete
the distribution of the Notes;
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provided, however, that the Company shall not be required to qualify as a
foreign corporation in any jurisdiction or to file a consent to service of
process in any jurisdiction in any action other than one arising out of the
offering or sale of the Notes in such jurisdiction.
(e) The Company shall make generally available (within the meaning
of Section 11(a) of the Act and Rule 158 of the Regulations) to its security
holders and to you, in such numbers as you may reasonably request for
distribution to the Underwriters, as soon as practicable but in no event later
than 45 days after the end of the Company's fiscal quarter in which the first
anniversary of the Effective Date occurs, an earnings statement (which need not
be audited), covering a period of at least twelve consecutive full calendar
months commencing after the Effective Date, that satisfies the provisions of
Section 11(a) of the Act and Rule 158 of the Regulations.
(f) Prior to the Closing Date, the Company will furnish to the
Underwriters, as promptly as practicable after they have been prepared by the
Company, a copy of any unaudited interim consolidated financial statements of
the Company for any period subsequent to the period covered by the most recent
financial statements of the Company appearing in the Final Prospectus.
(g) The Company will use its best efforts in cooperation with the
Underwriters to permit the Notes to be eligible for clearance and settlement
through The Depository Trust Company.
(h) The Company shall apply the net proceeds from the sale of the
Notes as shall be set forth under the caption "Use of Proceeds" in the Final
Prospectus.
4. Payment of Expenses. The Company will pay all expenses incident
to the performance of its obligations under this Agreement, including (a) the
printing of the Registration Statement, the Base Prospectus, any Preliminary
Prospectus and the Final Prospectus and of each amendment or supplement thereto
and the delivery to the Underwriters of printed copies thereof, (b) the copying
of this Agreement and the Indenture, (c) the preparation, issuance and delivery
of the Notes to the Underwriters, including capital duties, stamp duties and
transfer taxes, if any, payable upon issuance of any of the Notes, the sale of
the Notes to the Underwriters and the fees and expenses of the Trustee, (d) the
fees and disbursements of its counsel and accountants, (e) the qualification of
the Notes under state securities laws in accordance with the provisions of
Section 3(d), including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with the
preparation of any blue sky survey and any legal investment survey, (f) the
printing and delivery to the Underwriters of
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copies of any blue sky survey and any legal investment survey, (g) the fee of
any filing for review of the offering with the NASD and (h) any out-of-pocket
expenses incurred by the Company or, with the Company's prior consent, on behalf
of the Company, on any "road show" or similar presentation to prospective
purchasers of Notes from the Underwriters. It is understood, however, that
except as provided in this Section, and Sections 6 and 7 below, the Underwriters
will pay all of their costs and expenses, including fees and disbursements of
their counsel, stock transfer taxes payable on resale of any of the Notes by
them, and any advertising expenses connected with any offers they may make.
5. Conditions of the Underwriters' Obligations. The obligations of
the several Underwriters to purchase and pay for the Notes, as provided herein,
shall be subject to (i) the accuracy, in all material respects, of the
representations and warranties of the Company herein contained, as of the date
hereof, as of the Closing Date and, with respect to Option Notes, the Option
Closing Date, (ii) the absence from any certificates, opinions, written
statements or letters furnished pursuant to this Section 5 to you or to counsel
of the Underwriters of any qualification or limitation not previously approved
in writing by you, (iii) the performance by the Company of its obligations
hereunder and (iv) the following additional obligations:
(a) Any post-effective amendments to the Registration Statement
required to be filed by the Company prior to the Closing Date shall have become
effective and no stop order suspending the effectiveness of the Registration
Statement or any such post-effective amendment shall have been issued and no
proceedings therefor shall have been initiated or, to the knowledge of the
Company, threatened by the Commission.
(b) On the Closing Date (and, with respect to the Option Notes, the
Option Closing Date) (i) no proceeding under the Act or the Exchange Act shall
have been initiated or threatened by the Commission, or, with respect to the
filing of any Form 8-A under the Exchange Act, by any national securities
exchange; and all requests for additional information on the part of the
Commission shall have been complied with or such requests shall have been
otherwise satisfied; (ii) the rating assigned by any nationally recognized
securities rating agency to any debt securities, preferred stock or other
obligations of the Company as of the date hereof shall not have been lowered
since the execution of this Agreement and no such agency shall have publicly
announced since the Execution Time that it has under surveillance or review,
with possible negative implications, its rating of any of the debt securities or
preferred stock of the Company; and (iii) since the respective dates as of which
information is given in the Registration Statement and the Final Prospectus,
except as otherwise stated therein or contemplated thereby, there shall not have
been any material adverse change in, or any adverse development which materially
affects, the financial condition, results of operations, business or properties
of the Company and
14
its subsidiaries considered as one enterprise, the effect of which is in your
reasonable judgment so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or delivery of the Notes on the
terms and in the manner contemplated in the Final Prospectus.
(c) The Indenture shall have been duly executed and delivered by the
Company and the Trustee.
(d) On the Closing Date (and, with respect to the Option Notes, the
Option Closing Date), the Final Prospectus shall not contain an untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(e) On the Closing Date (and, with respect to the Option Notes, the
Option Closing Date), the Underwriters shall have received the favorable
opinion, dated as of the Closing Time, of:
(A) Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, in a form
reasonably satisfactory to the Underwriters, to the effect that:
(1) The Notes have been duly authorized by the Company for
issuance and when executed (and assuming the due authorization,
execution and delivery of the Indenture by the Trustee and the
execution, delivery and authentication of the Notes by the Trustee
in accordance with the Indenture) and delivered by the Company to
and paid for by the Underwriters in accordance with the terms of
this Agreement, will be duly executed, authenticated, issued and
delivered and will constitute the legal, valid and binding
obligations of the Company enforceable against the Company in
accordance with their terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally and
subject, as to enforceability, to general principles of equity,
including principles of commercial reasonableness, good faith and
fair dealing (regardless of whether a proceeding is sought in equity
or at law).
15
(2) The Indenture has been duly authorized by the Company and,
when duly executed and delivered by the Company (assuming the due
authorization, execution and delivery thereof by the Trustee), will
constitute the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally and subject, as to enforceability, to
general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether a
proceeding is sought in equity or at law).
(3) The execution, delivery and performance of this Agreement
by the Company and the consummation by the Company of the
transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action on the part of the
Company. This Agreement has been duly executed and delivered by the
Company.
(4) The statements made in the Final Prospectus under the
caption "Description of the Debt Securities," insofar as they
describe the provisions of the Notes and the Indenture, constitute
fair summaries thereof accurate in all material respects.
(5) The Company is not now, nor immediately after the sale of
the Notes to be sold hereunder and application of the net proceeds
from such sale (as described in the Final Prospectus under the
caption "Use of Proceeds") will be, an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended.
(6) Neither the consummation of the transactions contemplated
hereby nor the sale, issuance, execution or delivery of the Notes,
nor the application of the proceeds therefrom (as shall be described
in the Final Prospectus under the caption "Use of Proceeds"), will
violate Regulation T (12 C.F.R. Part 220), U (12 C.F.R. Part 221) or
X (12 C.F.R. Part 224) of the Board of Governors of the Federal
Reserve System; the Notes, and the use of the proceeds therefrom (as
shall be described in the Final Prospectus under the caption "Use of
Proceeds"), do not constitute "purpose credit" as such term is
understood under such Regulations; and
(B) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., Executive Vice President and General
Counsel of the Company, in a form reasonably satisfactory to the
Underwriters, to the effect that:
16
(1) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of State of Delaware
with corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Registration Statement and as shall be described in the Final
Prospectus. To the best of such counsel's knowledge, the Company is
duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such qualification is
required, whether by reason of ownership or leasing of property or
the conduct of business, except where the failure to so qualify
would not have a Material Adverse Effect.
(2) All of the issued and outstanding shares of capital stock
of the Company have been duly authorized and validly issued, and are
fully paid and nonassessable. All of the issued and outstanding
shares of capital stock of each of the Significant Subsidiaries have
been duly authorized and validly issued and are fully paid and
non-assessable and are owned by the Company, directly or indirectly,
free and clear of all Liens, other than as set forth in the
Registration Statement and as shall be described in the Final
Prospectus.
(3) The execution and delivery of this Agreement and the
Indenture and the consummation of the transactions contemplated
hereby and thereby will not conflict with, constitute a default
under or violate (or with respect to clause (y), impose or create
any lien upon any material property or assets of the Company or any
of its Significant Subsidiaries under) (x) any of the terms,
conditions or provisions of the respective certificates of
incorporation or by-laws of the Company or its Significant
Subsidiaries, (y) to the best of such counsel's knowledge, any of
the terms, conditions or provisions of any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company or its Significant Subsidiaries is a
party or by which the Company or its Significant Subsidiaries is
bound, or to which any of the property or assets of the Company or
its Significant Subsidiaries is subject, except with respect to such
conflicts, defaults or violations which would not have a Material
Adverse Effect, or (z) any decree of any court or governmental
authority binding on the Company or its Significant Subsidiaries, of
which such counsel is aware, except those which would not have a
Material Adverse Effect.
(4) To the best of such counsel's knowledge, no default exists
in the due performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note,
17
lease or other agreement or instrument to which the Company or its
Significant Subsidiaries is a party or is bound where such default
could have a Material Adverse Effect.
(5) To the best of such counsel's knowledge, there are no
legal or governmental proceedings pending or threatened which could
reasonably be expected to have a Material Adverse Effect and which
are not disclosed in the Registration Statement or as shall be
described in the Final Prospectus.
(6) To the best of such counsel's knowledge, neither the
Company nor any of its Significant Subsidiaries is in violation of
(x) its charter, by-laws or other similar organizational documents
or (y) any franchise, license, permit, judgment, decree, order,
statute, rule or regulation of any federal or state court, or New
York, Delaware corporate or federal governmental authority, except
where such violation would not have a Material Adverse Effect.
In giving their opinions required by subsections (e)(A) and (B) of
this Section, Weil, Gotshal & ▇▇▇▇▇▇ LLP and ▇▇. ▇▇▇▇▇▇▇▇ shall additionally
state that each such counsel (together with, in the case of ▇▇. ▇▇▇▇▇▇▇▇,
attorneys on his staff acting under his supervision) have participated in
conferences with directors, officers and other representatives of the Company,
representatives of the independent public accountants for the Company,
representatives of the Underwriters and representatives of counsel for the
Underwriters, at which conferences the contents of the Final Prospectus and
related matters were discussed, and, although such counsel has not independently
verified and is not passing upon and assumes no responsibility for the accuracy,
completeness or fairness of the statements contained in the Final Prospectus
(except in the case of Weil, Gotshal & ▇▇▇▇▇▇ LLP to the extent specified in
subsections (e)(A)(4)), no facts have come to such counsel's attention which
lead it or him to believe that the Underwriters, on the date thereof or at the
Closing Date (or the Option Closing Date, as the case may be), contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the statements
contained therein, in light of the circumstances under which they were made, not
misleading (it being understood that such counsel expresses no view with respect
to the financial statements and related notes, the financial statement schedules
and the other financial, statistical and accounting data included in the Final
Prospectus).
References to the Final Prospectus in this subsection (c) shall
include any amendment or supplement thereto prepared in accordance with the
provisions of this Agreement at the Closing Date.
18
The opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP described in subsection
(e)(A) and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq. described in subsection
(e)(B) shall be rendered to the Underwriters at the request of the Company and
shall so state therein.
(f) The favorable opinion, dated as of the Closing Date (and, with
respect to the Option Notes, the Option Closing Date), of ___________, counsel
for the Underwriters, in form and substance satisfactory to the Underwriters.
(g) On the Closing Date (and, with respect to the Option Notes, the
Option Closing Date) there shall not have been, since the date hereof or since
the respective dates as of which information is given in the Final Prospectus,
any Material Adverse Change, whether or not arising in the ordinary course of
business, and the Underwriters shall have received a certificate of the
President of the Company and of an Executive Vice President of the Company,
dated as of the Closing Date (and, with respect to the Option Notes, the Option
Closing Date), to the effect that (i) there has been no Material Adverse Change,
(ii) the representations and warranties in Section l(a) are true and correct in
all material respects with the same force and effect as though expressly made at
and as of the Closing Date (and, with respect to the Option Notes, the Option
Closing Date), and (iii) the Company has complied in all material respects with
all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Date (and, with respect to the Option
Notes, the Option Closing Date).
(h) On the date hereof and on the Closing Date (and, with respect to
the Option Notes, the Option Closing Date), the Underwriters shall have received
from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP "cold comfort" letters dated such dates, in customary
form and substance and otherwise reasonably satisfactory to the Underwriters.
(i) At the Closing Date (and, with respect to the Option Notes, the
Option Closing Date), counsel for the Underwriters shall have been furnished
with such documents and opinions as they may reasonably require for the purpose
of enabling them to pass upon the issuance and sale of the Notes as contemplated
herein and related proceedings, or in order to evidence the accuracy of any of
the representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Notes and as herein contemplated shall be
reasonably satisfactory in form and substance to the Underwriters and counsel
for the Underwriters.
(j) On or after the date hereof, (i) no downgrading shall have
occurred in the rating accorded any of the debt securities of the Company or its
Significant Subsidiaries by any "nationally recognized statistical rating
organization," as that term is defined by the Commission
19
for purposes of Rule 436(g)(2) of the Regulations and (ii) no such organization
shall have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of the debt securities of the Company
or its Significant Subsidiaries.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriters by notice to the Company, and such termination shall be
without liability of any party to any other party except as provided in Sections
4, 6 and 7.
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, its directors, officers and employees, and each person, if any, who
controls an Underwriter and its directors, officers and employees within the
meaning of Section 15 of the Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, any Preliminary Prospectus or Final Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company (which shall not be unreasonably
withheld); and
(iii) against any and all expenses whatsoever, as incurred
(including, subject to subsection (c) of this Section 6, the reasonable
fees and disbursements of counsel chosen by the Underwriters), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that, (A) the Company shall not be obligated to indemnify or
hold harmless
20
an Underwriter and its controlling persons and their respective directors,
officers and employees in respect of any loss, claim, damage, liability or
action to the extent that any such loss, claim, damage, liability or action
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in the Preliminary Prospectus if such
Underwriter failed to deliver the Final Prospectus that was made available by
the Company for delivery to the person or persons asserting the claim which is
the basis of indemnification and such Final Prospectus cured such defect, and
(B) with respect to each Underwriter, this indemnity agreement shall not apply
to any loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information concerning such Underwriter
furnished to the Company by or on behalf of such Underwriter in writing
expressly for use in the Final Prospectus or any Preliminary Prospectus (or any
amendment or supplement thereto). This indemnity shall be in addition to any
indemnity that such indemnified persons may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, officers and employees, and each person, if any, who
controls the Company and their directors, officers and employees within the
meaning of Section 15 of the Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section 6, as incurred, but only with respect to an untrue statement or
omission, or alleged untrue statement or omission, made in the Registration
Statement, Final Prospectus or the Preliminary Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
concerning such Underwriter furnished to the Company by or on behalf of such
Underwriter expressly for use in the Registration Statement, Final Prospectus or
such Preliminary Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have otherwise than on account of this indemnity
agreement, unless and to the extent the indemnifying party did not otherwise
learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights or defenses. An indemnified party may
participate at its own expense in the defense of any such action. In no event
shall the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. An indemnifying party shall be liable for
any settlement of any claim against an
21
indemnified party made with the indemnifying party's written consent, which
consent shall not be unreasonably withheld.
7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and the Underwriters, as incurred, in such proportions
that the Underwriters are responsible for that portion represented by the
percentage that the purchase discount applicable to the Notes purchased by the
Underwriters bears to the Offering Price appearing on the cover page of the
Final Prospectus and the Company is responsible for the balance; provided,
however, that 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. Notwithstanding
the provisions of this Section, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Notes
underwritten by it and distributed to purchasers exceeds the amount of any
damages which such Underwriter has otherwise been required to pay in respect of
such losses, liabilities, claims, damages and expenses. For purposes of this
Section, each director, officer and employee of an Underwriter or the Company,
and each person, if any, who controls an Underwriter or the Company within the
meaning of Section 15 of the Act, shall have the same rights to contribution as
such Underwriter or the Company, as the case may be.
8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties, and agreements contained in this Agreement or
in certificates of officers of the Company submitted pursuant hereto, shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of an Underwriter or any controlling person, or by or on
behalf of the Company, and shall survive delivery of and payment for the Notes
to the Underwriters.
9. Default by an Underwriter.
(a) If any Underwriter shall default, in whole or in part, in its
obligation to purchase Notes hereunder, and if the Notes with respect to which
such default relates do not (after giving effect to arrangements, if any, made
pursuant to subsection (b) below) exceed in the aggregate 10% of the total
number of Notes that all Underwriters have agreed to purchase hereunder, then
the Notes to which the default relates shall be purchased by the non-defaulting
Underwriters on a pro rata basis based on the amount of Notes to be purchased as
set forth on
22
Schedule I.
(b) If such default relates to more than 10% of the Notes, the
Representative may in its discretion arrange for another party or parties
(including the non-defaulting Underwriters, if they should so agree) to purchase
those of the Notes to which such default relates on the terms contained herein.
If within thirty-six (36) hours after such a default the Representative does not
arrange for the purchase of those of the Notes to which such default relates as
provided in this Section 9, this Agreement shall thereupon terminate, without
liability on the part of the Company with respect thereto (except in each case
as provided in Sections 4, 6 and 7 hereof) or the non-defaulting Underwriters
(except as provided in Sections 6 and 7 hereof), but nothing in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the other
Underwriters and the Company for damages occasioned by its or their default
hereunder.
(c) If the Notes to which the default relates are to be purchased by
any non-defaulting Underwriters, or are to be purchased by another party or
parties as aforesaid, the Representative or the Company shall have the right to
postpone the Closing Date for a period not exceeding five (5) business days, in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Final Prospectus or in any other documents and
arrangements, and the Company agrees to file promptly any amendment or
supplement to the Registration Statement or the Final Prospectus that, in the
opinion of Underwriters' Counsel, may thereby be made necessary or advisable.
The term "Underwriter" as used in this Agreement shall include any party
substituted under this Section 9 with like effect as if it had originally been a
party to this Agreement with respect to such Notes.
10. Termination.
(a) The Underwriters may terminate this Agreement, by notice to the
Company, (i) if there has been, since the date of this Agreement or since the
respective dates as of which information is given in the Final Prospectus, any
Material Adverse Change, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse change in the U.S.
or international financial markets or any outbreak of hostilities or other
calamity or crisis, the effect of which on the financial securities markets of
the United States is such as to make it, in the judgment of the Underwriters,
impracticable to market the Notes or to enforce contracts for the sale of the
Notes, or (iii) if trading in any of the securities of the Company or any of its
subsidiaries has been suspended by the Commission, or if trading generally on
either the American Stock Exchange or the New York Stock Exchange has been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for
23
securities have been required, by either of said Exchanges or by order of the
Commission or any other governmental authority; provided that any such
suspension, limitation or minimum prices exist at the time of such termination
or (iv) if a banking moratorium has been declared by either federal or New York
authorities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Sections 4, 6 and 7.
11. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to the Underwriters shall be
directed to them c/o ________________________; notices to the Company shall be
directed to it at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General
Counsel.
12. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriters, the Company and their respective successors,
heirs and legal representatives. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters, the Company and their respective
successors, heirs and legal representatives, and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable rights, remedy or claim under or in
respect of this Agreement or any provision herein. This Agreement and all
conditions and provisions hereof are intended for the sole and exclusive benefit
of the Underwriters, the Company and their respective successors, heirs and
legal representatives, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Notes from either of the
Underwriters shall be deemed to be a successor by reason merely of such
purchase.
13. Governing Law and Time. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Specified times of day refer
to New York City time.
24
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters and the Company in accordance with its terms.
Very truly yours,
INTERNATIONAL SPECIALTY PRODUCTS
INC.
By:
---------------------------------------
Name:
Title:
Confirmed and accepted as of the
date first above written:
MANAGING UNDERWRITER(S)
By:____________________________
Name:
Title:
[OTHER UNDERWRITER(S)]
By:____________________________
Name:
Title:
25
SCHEDULE I
UNDERWRITERS
Amount of
Notes
Name of Underwriter to be Purchased
------------------- ---------------
------------------------.................................................
------------------------.................................................
TOTAL: ==========
=====
26
