11,748,591 Shares
SUN COMPANY, INC.
Depositary Shares
Each Representing One-Half of a Share of Series A Cumulative Preference Stock
(No Par Value)
UNDERWRITING AGREEMENT
April __, 1996
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
CS First Boston Corporation
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
The Glenmede Trust Company, as trustee and not in its individual capacity
(the "Trustee") for certain shareholders of Sun Company, Inc., a Pennsylvania
corporation (the "Company"), named in Schedule I (the "Charitable Trusts")
hereto, on behalf of the Charitable Trusts, severally with respect to each
Charitable Trust proposes to sell to the several Underwriters referred to below
an aggregate of 11,748,591 Depositary Shares, each representing ownership of
one-half of a share of Series A Cumulative Preference Stock, no par value, of
the Company (the "Shares"), each Charitable Trust selling the amount set forth
opposite such Charitable Trust's name in Schedule I hereto. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇"), CS First Boston Corporation and ▇▇▇▇▇
▇▇▇▇▇▇ Inc. shall act as the representatives (the "Representatives") of the
several Underwriters. The Trustee and Charitable Trusts are hereinafter
sometimes collectively referred to as the "Sellers".
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Incorporated -2- April __, 1996
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Shares. The registration statement, including the exhibits thereto and the
documents incorporated by reference therein, as amended at the time it becomes
effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933, as amended (the "Securities Act"), is hereinafter
referred to as the "Registration Statement"; the prospectus in the form first
used to confirm sales of Shares is hereinafter referred to as the "Prospectus".
I.
Subject to the terms and conditions hereof, the Trustee, on behalf of each
Charitable Trust, severally with respect to each Charitable Trust and not
jointly, hereby agrees to sell to the several Underwriters, and each
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees, severally
and not jointly, to purchase from the Trustee, on behalf of each Charitable
Trust, at $__.__ a share (the "Purchase Price") the number of Shares (subject to
such adjustments to eliminate fractional shares as the Representatives may
determine) that bears the same proportion to the number of Shares to be sold by
such Charitable Trust as the number of Shares set forth opposite the name of
such Underwriter in Schedule II hereto bears to the total number of Shares.
Each of the Company and the Charitable Trusts hereby agrees that, without
the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the Underwriters, it
will not, during the period ending 90 days after the date of the Prospectus, (i)
offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of, directly or indirectly, any
Depositary Shares or shares of common stock of the Company (the "Common Stock")
or any securities convertible into or exercisable or exchangeable for Common
Stock or (ii) enter into any swap or other agreement that transfers, in whole or
in part, any of the economic consequences of ownership of the Common Stock,
whether any such transaction described in clause (i) or (ii) above is to be
settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold
hereunder, (B) the issuance by the Company of any shares of Common Stock upon
the exercise of an option or warrant or the conversion of a security outstanding
on the date hereof of which the Underwriters have been advised in writing or
which is
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Incorporated -3- April __, 1996
described in the Prospectus or the materials incorporated therein by reference,
(C) options and similar instruments granted to employees of the Company to
acquire Common Stock and other interests in shares of Common Stock, in each case
granted pursuant to the Company's employee benefit plans, (D) any Common Stock
issuable pursuant to the Company's Dividend Reinvestment Plan, or (E) any stock
purchase rights or shares issuable pursuant to the Company's Shareholder Rights
Plan adopted February 1, 1996, provided however, that it is understood and
agreed to by the parties hereto that the registration statement of the Company
filed with the Commission on May 20, 1994 and declared effective on June 27,
1994 shall not be deemed to constitute an offer of Common Stock for purposes of
this paragraph, provided further, that any sale of securities by the Company
pursuant to such registration statement shall be subject to the provisions
contained in this paragraph. In addition, the Charitable Trusts agree that,
without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the
Underwriters, they will not, during the period ending 90 days after the date of
the Prospectus, make any demand for, or exercise any right with respect to, the
registration of any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock.
II.
The Company and the Sellers are advised by you that the Underwriters
propose to make a public offering of their respective portions of the Shares as
soon after the Registration Statement and this Agreement have become effective
as in your judgment is advisable. The Company and the Sellers are further
advised by you that the Shares are to be offered to the public initially at
$__.__ a Share (the "Public Offering Price") and to certain dealers selected by
you at a price that represents a concession not in excess of $.__ a Share under
the Public Offering Price, and that any Underwriter may allow, and such dealers
may reallow, a concession, not in excess of $.__ a Share, to any Underwriter or
to certain other dealers.
III.
Payment for the Shares shall be made to the Trustee, as paying agent, in
Federal or other funds immediately available in New York City against delivery
of such Shares for the respective accounts of the several Underwriters at the
office of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, 450 Lexington Avenue, New York, New York, or
such other place as shall be designated in writing by you. Such payment shall
be made at
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Incorporated -4- April __, 1996
10:00 A.M., New York City time, on April __, 1996, or at such other time on the
same or such other date, not later than April __, 1996, as shall be designated
in writing by you. The time and date of such payment are hereinafter referred
to as the Closing Date.
Receipts for the Shares shall be in definitive form and registered in such
names and in such denominations as you shall request in writing not later than
two full business days prior to the Closing Date. The receipts evidencing the
Shares shall be delivered to you on the Closing Date for the respective accounts
of the several Underwriters, with any transfer taxes payable in connection with
the transfer of the Shares to the Underwriters duly paid, against payment of the
Purchase Price therefor.
IV.
The Company represents, warrants and agrees with each Underwriter that:
(a) The Registration Statement has been prepared by the Company in
conformity with the requirements of the Securities Act and the rules and
regulations (the "Rules and Regulations") of the Commission thereunder, and
the Registration Statement has become effective under the Securities Act.
Copies of the Registration Statement as originally filed and each amendment
thereof, if any, have been delivered by the Company to the Underwriters.
As used in this Agreement, "Effective Date" means the date as of which the
Registration Statement was declared effective by the Commission. The
Commission has not issued any order preventing or suspending the use of any
preliminary prospectus, the Prospectus or the Registration Statement and,
to the best of the Company's knowledge, no proceedings for such purpose are
pending before or threatened by the Commission;
(b) On the Effective Date, the Registration Statement conformed in all
respects to the requirements of the Securities Act and the Rules and
Regulations and did not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and on the date hereof and at
the time of filing of the Prospectus with the Commission pursuant to Rule
424(b) under the Rules and Regulations, the Registration Statement and the
Prospectus
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Incorporated -5- April __, 1996
conform and will conform in all respects to the requirements of the
Securities Act and the Rules and Regulations and neither of such documents
include or will include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, that no representation or
warranty is made as to information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon and in conformity
with written information furnished to the Company through the
Representatives by or on behalf of any Underwriter or written information
furnished to the Company by or on behalf of any Seller specifically for
inclusion therein;
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the results of operations or the consolidated financial position
of the Company and its subsidiaries, taken as a whole;
(d) Each Significant Subsidiary of the Company (as defined in Rule 405
of the Rules and Regulations) has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the results of operations or the consolidated
financial position of the Company and its subsidiaries, taken as a whole;
(e) All of the issued shares of capital stock of each Significant
Subsidiary of the Company (except as described in the Prospectus) have been
duly and validly authorized and issued and are fully paid, non-assessable
and are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;
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Incorporated -6- April __, 1996
(f) The execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated hereby will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Company or any of its Significant Subsidiaries is a party or by which the
Company or any of its Significant Subsidiaries is bound or to which any
property or assets of the Company or any of its Significant Subsidiaries
are subject, except for any conflict, breach or violation which would not,
individually or in the aggregate, have a material adverse effect on the
business, properties, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries, taken as a whole, nor
will such actions result in any violation of the provisions of the charter
or bylaws of the Company or any of its Significant Subsidiaries or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
Significant Subsidiaries or any of their properties or assets; and except
for the registration of the Shares under the Securities Act and such
consents, approvals, authorizations, registrations or qualifications as may
be required under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and applicable state or foreign securities laws in
connection with the purchase and distribution of the Shares by the
Underwriters, no consent approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of this Agreement by
the Company and the consummation of the transactions contemplated hereby;
(g) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to include any securities owned or to be owned by such person in
the securities registered pursuant to the Registration Statement, or,
except as described in the Prospectus, to require the Company to file any
other registration statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such person or to require
the Company to include such securities in any securities being registered
pursuant to any other registration statement filed by the Company under the
Securities Act;
(h) This Agreement has been duly authorized, executed and delivered by
the Company;
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Incorporated -7- April __, 1996
(i) The Common Stock and the cumulative preference stock of the
Company ("the Cumulative Preference Stock") (including the Series A
Cumulative Preference Stock underlying the Shares to be sold by the
Charitable Trusts) outstanding on the date hereof have been duly authorized
and are validly issued, fully paid and non-assessable;
(j) The Shares (including the Series A Cumulative Preference Stock
underlying the Shares) have been duly authorized, are validly issued, fully
paid and non-assessable, and will remain subject to the obligations of the
Deposit Agreement for the Series A Cumulative Preference Stock dated as of
June 13, 1995 as described in the Prospectus;
(k) The authorized capital stock of the Company conforms in all
material respects to the description thereof contained in the Registration
Statement and the Prospectus;
(l) Except as described in the Prospectus, there are no legal or
governmental proceedings pending or, to the knowledge of the Company,
threatened, to which the Company is a party or of which any property of the
Company or any of the Company's subsidiaries is the subject, the outcome of
which is likely to have a material adverse effect on the consolidated
financial position of the Company and its subsidiaries, taken as a whole;
(m) The audited financial statements included or incorporated by
reference in the Registration Statement or included or incorporated by
reference in the Prospectus present fairly the consolidated financial
position of the Company and its subsidiaries and the consolidated results
of their operations, changes in stockholders' equity and their cash flows,
at the dates and for the periods indicated, and have been prepared in
conformity with generally accepted accounting principles. Since the date
of such statements, there has been no material adverse change in the
operations, business, property, assets or liabilities of the Company or any
of its subsidiaries, taken as a whole, or in the consolidated financial
position of the Company and its subsidiaries taken as a whole;
(n) No relationship, direct or indirect, exists between or among the
Company on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company on the other hand, which is required
to be described in the Prospectus and which is not so described;
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Incorporated -8- April __, 1996
(o) Except as described in the Prospectus, since the date as of which
information is given in the Prospectus, the Company has not issued or
granted any rights to acquire any equity securities of the Company (other
than pursuant to employee benefit plans, stock option plans or other
employee or director compensation plans existing on the date of the
Prospectus);
(p) Neither the Company nor any of its subsidiaries is in violation of
its charter or bylaws or in default, and no event has occurred which, with
the notice or lapse of time or both, would constitute a default, in the due
performance or observance of any term, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any subsidiary is a party or by which
they are bound or to which any of their properties or assets is subject,
which violation, default or event in each case will have a material adverse
effect on the consolidated business, properties, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole;
(q) There are no contracts or other documents which are required to
be filed as exhibits to the Registration Statement by the Securities Act or
by the Rules and Regulations which have not been filed as exhibits to the
Registration Statement;
(r) The Company is not required to be registered, and is not
regulated, as an "investment company" as such term is defined under the
United States Investment Company Act of 1940;
(s) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
consolidated condition, financial or otherwise, or in the consolidated
earnings, business or operations of the Company and its subsidiaries, taken
as a whole, from that set forth in the Prospectus;
(t) The Company has complied with all provisions of Section 517.075,
Florida Statutes relating to doing business with the Government of Cuba or
with any person or affiliate located in Cuba; and
(u) Any certificate signed by any officer of the Company and delivered
to you or to counsel for the Underwriters shall be deemed a representation
and warranty by the Company to each Underwriter as to the
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Incorporated -9- April __, 1996
matters covered thereby.
V.
The Trustee, on behalf of the Charitable Trusts, severally with
respect to each Charitable Trust represents, warrants and agrees with each
Underwriter that:
(a) Such Charitable Trust was duly established and the Trustee is the
duly appointed and incumbent trustee or co-trustee of such Trust having the
requisite authority to execute and deliver this Agreement and to sell the
Shares being sold to the Underwriters by such Charitable Trust;
(b) This Agreement has been duly authorized, executed and delivered
by or on behalf of such Charitable Trust, and all authorizations and
consents necessary for the execution and delivery by such Charitable Trust
of this Agreement have been given and are in full force and effect on the
date hereof;
(c) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby by the Trustee will
not conflict with any provision of law applicable to the Charitable Trusts
or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any material agreement, instrument, decree,
judgment or order pursuant to which such Charitable Trust was established
or to which such Charitable Trust is a party or by which such Charitable
Trust may be bound or to which any material portion of the properties of
such Charitable Trust may be subject;
(d) Such Charitable Trust has, and on the Closing Date will have,
valid marketable title to the Shares to be sold by such Charitable Trust
and the legal right and power, and all authorization and approval required
by law, to enter into this Agreement and to sell, transfer and deliver the
Shares to be sold by such Charitable Trust;
(e) The Shares to be sold by such Charitable Trust pursuant to this
Agreement are owned by such Charitable Trust free and clear of all liens,
encumbrances, equities or claims;
(f) Delivery of the Shares to be sold by such Charitable Trust
pursuant
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Incorporated -10- April __, 1996
to this Agreement will pass marketable title to such Shares free and clear
of all liens, encumbrances, equities or claims;
(g) All information furnished by or on behalf of such Charitable
Trust for use in the Registration Statement and Prospectus is on the date
hereof, and will be at the time of the filing of the Prospectus pursuant to
Rule 424(b) under the Rules and Regulations, true and correct, and does not
on the date hereof, and will not at the time of the filing of the
Prospectus pursuant to Rule 424(b) under the Rules and Regulations, contain
any untrue statement of a material fact or omit to state any material fact
necessary to make such information not misleading; and
(h) Any certificate signed by or on behalf of such Charitable Trust
and delivered to you or to counsel for the Underwriters shall be deemed a
representation and warranty by such Charitable Trust to each Underwriter as
to the matters covered thereby.
VI.
The Glenmede Trust Company, in its individual capacity ("Glenmede"),
represents, warrants and agrees with each Underwriter and the Company that:
(a) Glenmede is a trust company (without banking powers) duly
organized, validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania; and Glenmede is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on Glenmede
and its subsidiaries, taken as a whole;
(b) This Agreement has been duly authorized, executed and delivered
by Glenmede; and all authorizations and consents necessary for the
execution and delivery by Glenmede of this Agreement have been obtained and
are in full force and effect on the date hereof;
(c) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby will not conflict with
or
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Incorporated -11- April __, 1996
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any material agreement, instrument, decree,
judgment or order to which Glenmede is a party or by which Glenmede may be
bound or to which any material portion of the properties of Glenmede may be
subject; and
(d) Any certificate signed by any officer of Glenmede and delivered
to you or to counsel for the Underwriters shall be deemed a representation
and warranty by Glenmede to each Underwriter as to the matters covered
thereby.
VII.
The obligations of the Underwriters hereunder are subject to all of
the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission. There shall not have
occurred any change, or any development involving a prospective change, in
the condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement), that, in your judgment,
is material and adverse and that makes it, in your judgment, impracticable
to market the Shares on the terms and in the manner contemplated in the
Prospectus.
(b) You shall have received on the Closing Date a certificate, dated
the Closing Date and signed by an executive officer of the Company (i) to
the effect set forth in Article VII(a) and (ii) to the effect that the
representations and warranties of the Company contained herein are true and
correct as of the Closing Date and that the Company has complied with all
of the agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his or her knowledge as to proceedings threatened.
(c) You shall have received on the Closing Date a certificate, dated
the
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Incorporated -12- April __, 1996
Closing Date and signed by the Trustee on behalf of each Charitable Trust,
to the effect that the representations and warranties of such Charitable
Trust contained herein are true and correct as of the Closing Date.
(d) You shall have received on the Closing Date a certificate, dated
the Closing Date and signed by an executive officer of Glenmede, to the
effect that the representations and warranties of Glenmede contained herein
are true and correct as of the Closing Date.
(e) You shall have received on the Closing Date an opinion of either
the Vice President and General Counsel or the Assistant General Counsel of
the Company, counsel to the Company, dated the Closing Date, in form and
substance satisfactory to the Underwriters, to the effect that:
(i) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction
of its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(ii) Each Significant Subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as
a whole;
(iii) The Common Stock and the Cumulative Preference Stock
(including the Series A Cumulative Preference Stock underlying the
Shares to be sold by the Charitable Trusts) outstanding on the date
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Incorporated -13- April __, 1996
hereof have been duly authorized and are validly issued, fully paid
and non-assessable;
(iv) The Shares (including the Series A Cumulative Preference
Stock underlying the Shares) have been duly authorized, are validly
issued, fully paid and non-assessable, and will remain subject to the
obligations of the Deposit Agreement for the Series A Cumulative
Preference Stock dated as of June 13, 1995 as described in the
Prospectus;
(v) The authorized capital stock of the Company conforms in all
material respects to the description thereof contained in the
Registration Statement and the Prospectus;
(vi) The Registration Statement has become effective and, to the
knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceeding for
that purpose is pending or threatened by the Commission;
(vii) To such counsel's knowledge, there are no contracts or
other documents which are required to be filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and
Regulations which have not been filed as exhibits to the Registration
Statement;
(viii) This Agreement has been duly authorized, executed and
delivered by the Company;
(ix) The compliance by the Company with all of the provisions of
this Agreement and the Shares and the consummation of the transactions
contemplated hereby will not conflict with or result in a breach of
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument, the conflict, breach, violation, or
default of which would have a materially adverse effect on the
business, properties, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a
whole, nor will such actions result in any violation of the provisions
of the charter
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Incorporated -14- April __, 1996
or bylaws of the Company or any violation of any statute or any order,
rule or regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets; and, except for the
registration of the Shares under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state or foreign
securities laws in connection with the purchase and distribution of
the Shares by the Underwriters, no consent, approval authorization or
order of, or filing, or registration with, any such court or
governmental agency or body is required for the execution, delivery
and performance of this Agreement by the Company and the consummation
of the transactions contemplated hereby;
(x) The Company is not required to be registered, and is not
regulated, as an "investment company" as such term is defined under
the Investment Company Act of 1940;
(xi) After due inquiry, such counsel does not know of any legal
or governmental proceedings pending or threatened to which the Company
or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that
are required to be described in the Registration Statement or the
Prospectus and are not so described or of any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement that are not described or filed as
required;
(xii) Such counsel (A) is of the opinion that the Registration
Statement and Prospectus (except for financial statements and
schedules included therein as to which such counsel need not express
any opinion) comply as to form in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder, (B) although such counsel is not passing upon
and does not assume any responsibility for, and shall not be deemed to
have independently verified, the accuracy, completeness or fairness of
the statements contained or incorporated by reference in the
Registration Statement and Prospectus (except as to (v) above), no
facts have come to the attention of such counsel that lead him to
believe that (except for
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Incorporated -15- April __, 1996
financial statements and schedules as to which such counsel need not
express any belief) the Registration Statement and the prospectus
included therein at the time the Registration Statement became
effective contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (C) although such
counsel is not passing upon and does not assume any responsibility
for, and shall not be deemed to have independently verified, the
accuracy, completeness or fairness of the statements contained or
incorporated by reference in the Registration Statement and Prospectus
(except as to (v) above), no facts have come to the attention of such
counsel that lead him to believe that (except for financial statements
and schedules as to which such counsel need not express any belief)
the Prospectus contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
In rendering such opinion, such counsel may rely as to matters of
fact upon certificates of officers of the Company and its subsidiaries
and public officials and include such limitations and assumptions as
are customarily contained in opinions given by counsel for issuers in
securities transactions.
With respect to certain matters relating to the laws of the State
of New York, such counsel may rely on the opinion of counsel to the
Underwriters.
(f) You shall have received on the Closing Date an opinion of Pepper,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for Glenmede, the Trustee and the Charitable
Trusts, dated the Closing Date, in form and substance satisfactory to the
Underwriters, to the effect that:
(i) Each Charitable Trust was duly established either by will or
by execution of a trust agreement (the "Governing Instrument(s)"), and
the Trustee is the duly appointed and incumbent trustee or, in the
case of The Medical Trust, the duly appointed and incumbent co-
trustee, of each such Charitable Trust and, except as set forth in the
next succeeding sentence, each Governing Instrument duly empowers the
Trustee, on behalf of such Charitable Trust, to execute and deliver
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Incorporated -16- April __, 1996
this Agreement and to sell the Shares being sold to the Underwriters
by such Charitable Trust; The execution and delivery of this
Agreement and the sale of the Shares to the Underwriters (A) by The
Medical Trust require the consent of the other co-trustee, which has
been obtained, and (B) by certain of the Charitable Trusts require the
consent of the holders of the outstanding shares of Class A Voting
Common Stock of The Glenmede Corporation, which has been obtained;
(ii) This Agreement has been duly authorized, executed and
delivered by or on behalf of each Charitable Trust and Glenmede, and
all authorizations and consents necessary for the execution and
delivery by each Charitable Trust and Glenmede of this Agreement have
been given and are in full force and effect on the date hereof;
(iii) The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated thereby will not
conflict with or result in a breach or violation of, or constitute as
default under, any of the terms or provisions of (A) law applicable to
Glenmede or any of the Charitable Trusts, (B) any Governing
Instrument, or (C) to our knowledge, any material agreement,
instrument, decree, judgment or order binding upon Glenmede or any
Charitable Trust or any material portion of the properties of Glenmede
or any Charitable Trust; and no consent, approval or authorization of
any governmental body is required for the performance by Glenmede or
any Charitable Trust of this Agreement;
(iv) Upon delivery of the certificates for the Shares to be sold
by each Charitable Trust pursuant to this Agreement, together with the
executed stock powers attached thereto, and payment therefor by the
Underwriters pursuant to this Agreement, the Underwriters will acquire
such Shares free and clear of any adverse claim (as defined in Article
8 of the Uniform Commercial Code as in effect in the Commonwealth of
Pennsylvania, assuming that the Underwriters acquire the Shares in
good faith and without notice of any such adverse claim; and
(v) Glenmede is a trust company (without banking powers) duly
organized, validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania; Glenmede is duly qualified to
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Incorporated -17- April __, 1996
transact business and is in good standing as a foreign corporation in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on Glenmede and its
subsidiaries, taken as a whole.
In rendering such opinion, such counsel may rely as to matters of
fact upon certificates of officers of the Company and its subsidiaries
and public officials and include such limitations and assumptions as
are customarily contained in opinions given by counsel for issuers in
securities transactions.
With respect to certain matters relating to the laws of the State of
New York, counsel for Glenmede, the Trustee and the Charitable Trusts may rely
on the opinion of counsel for the Underwriters.
(g) You shall have received on the Closing Date an opinion of ▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, dated the Closing Date, as
to certain matters.
With respect to certain matters relating to the laws of the
Commonwealth of Pennsylvania, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ may rely on the opinions of
counsel for the Company and counsel for Glenmede, the Trustee and the Charitable
Trusts.
(h) You shall have received on the date hereof and the Closing Date a
letter dated the date hereof or the Closing Date, as the case may be, in
each case in form and substance satisfactory to you, from independent
public accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus; provided that
the letter delivered on the Closing Date shall use a "cut-off date" not
earlier than the date hereof.
VIII.
The obligations of the Charitable Trusts to deliver certificates for
the
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Incorporated -18- April __, 1996
Shares to be purchased and sold hereunder on the Closing Date are subject to all
of the following conditions:
(a) The Charitable Trusts shall have been tendered payment on the
Closing Date for the Shares as provided in Article III hereof; and
(b) The conditions set forth in Article VII(b), (e) and (h) to the
Underwriters' obligations hereunder shall have been satisfied.
IX.
In further consideration of the agreements of the Company herein
contained, the Charitable Trusts covenant as follows:
(a) The Company shall have received on the Closing Date a certificate,
dated the Closing Date and signed by the Trustee on behalf of each
Charitable Trust, to the effect that the representations and warranties of
such Charitable Trust contained herein are true and correct as of the
Closing Date;
(b) The Company shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
Glenmede, to the effect that the representations and warranties of Glenmede
contained herein are true and correct as of the Closing Date; and
(c) The Company shall have received on the Closing Date an opinion
of Pepper, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for Glenmede, the Trustee and the
Charitable Trusts, dated the Closing Date, in form and substance as set
forth in Article VII(f) of this Agreement.
X.
In further consideration of the agreements of the Underwriters herein
contained, the Company covenants as follows:
(a) To furnish you, without charge, four signed copies of the
Registration Statement (including exhibits thereto and documents
incorporated
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Incorporated -19 April __, 1996
therein by reference) and for delivery to each other Underwriter a
conformed copy of the Registration Statement (without exhibits thereto but
including documents incorporated therein by reference) and to furnish you
in New York City, without charge, prior to 10 A.M. local time on the
business day next succeeding the date of this Agreement and, during the
period mentioned in paragraph (c) below, as many copies of the Prospectus,
any documents incorporated therein by reference, and any supplements and
amendments thereto as you and they may reasonably request; The terms
"supplement" and "amendment" or "amend" as used in this Agreement shall
include all documents subsequently filed by the Company with the Commission
pursuant to the Exchange Act that are deemed to be incorporated by
reference in the Prospectus;
(b) Before amending or supplementing the Registration Statement or
the Prospectus, to furnish you a copy of each such proposed amendment or
supplement and to file no such proposed amendment or supplement to which
you reasonably object unless such proposed amendment or supplement is, in
the opinion of Counsel to the Company, required by law;
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the Underwriters
the Prospectus is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if, in
the opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with applicable law or any agreement
between the Company and the Trustee, Glenmede or the Charitable Trusts,
forthwith to prepare, file with the Commission (but only to the extent
required by the Commission's rules and regulations) and furnish, at its own
expense, to the Underwriters and to the dealers (whose names and addresses
you will furnish to the Company) to which Shares may have been sold by you
on behalf of the Underwriters and to any other dealers upon request, either
amendments or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented will
comply with applicable law;
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Incorporated -20- April __, 1996
(d) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request and to pay all expenses (including fees and disbursements of
counsel) in connection therewith; provided, that nothing contained in this
Paragraph shall require the Company to qualify as a foreign corporation in
any jurisdiction where the operations and business of the Company would not
otherwise require such qualification; and
(e) To make generally available to the Company's security holders as
soon as practicable an earnings statement covering the twelve-month period
ending December 31, 1996, that satisfies the provisions of Section 11(a) of
the Securities Act and the Rules and Regulations (including, at the option
of the Company, Rule 158).
XI.
The Company and the Trustee, severally and not jointly, agree to pay
or cause to be paid, in such proportion as they shall have agreed in the
Registration Rights Agreement dated February 1, 1996, between the Company and
The Glenmede Trust Company in its corporate capacity and as trustee or co-
trustee of the Charitable Trusts, all taxes, if any, on the transfer and sale of
the Shares being sold by the Charitable Trusts and all costs and expenses
incident to the performance of the obligations of the Company and the Charitable
Trusts under this Agreement, including, but not limited to, all expenses
incident to the delivery of the Shares, the fees and expenses of counsel and
accountants for the Trustee, the Charitable Trusts and the Company, the costs
and expenses incident to the preparation, printing and filing of the
Registration Statement (including all exhibits thereto) and the Prospectus and
any amendments or supplements thereto, the expenses of qualifying the Shares
under the securities or Blue Sky laws of various jurisdictions, any fees payable
or expenses in connection with the listing of the Shares on any securities
exchange and the cost of furnishing to the Underwriters the required copies of
the Registration Statement and Prospectus and any amendments or supplements
thereto.
XII.
The Company agrees to indemnify and hold harmless each Underwriter,
Glenmede and each Charitable Trust and each person, if any, who
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Incorporated -21- April __, 1996
controls any Underwriter, Glenmede or such Charitable Trust within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act
from and against any and all losses, claims, damages and liabilities (including
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, or the Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except (i) with
respect to the Charitable Trusts or Glenmede insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to the
Charitable Trusts or Glenmede furnished to the Company in writing by or on
behalf of any Charitable Trust or Glenmede expressly for use in the Registration
Statement or any amendment thereof, the Prospectus (as amended or supplemented
if the Company shall have furnished any amendments or supplements thereto), or
any preliminary prospectus; and (ii) with respect to the Underwriters insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to the Underwriters furnished to the Company in writing by
or on behalf of any Underwriter expressly for use in the Registration Statement
or any amendment thereof, the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or any
preliminary prospectus.
Glenmede, in its individual capacity, agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act and the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of either such Section, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
or the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or any preliminary prospectus,
or caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but only with reference to information relating to
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Incorporated -22- April __, 1996
the Sellers furnished in writing by or on behalf of the Sellers expressly for
use in the Registration Statement, the Prospectus, any preliminary prospectus or
any amendment or supplement thereto. The statements set forth under the caption
"Selling Shareholders" in the Registration Statement or any amendments or
supplements thereto or in any preliminary prospectus or any amendments or
supplements thereto constitute the only written information furnished by or on
behalf of any of the Charitable Trusts, the Trustee or Glenmede referred to in
Articles IV(b) and XII.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless Glenmede, the Charitable Trusts, the Company, the directors of the
Company, the officers of the Company who sign the Registration Statement and
each person, if any, who controls the Company, Glenmede or any Charitable Trust
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses,
reasonably incurred in connection with defending or investigating any such
claim) caused by any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or any amendment thereof or the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) or any preliminary prospectus, or caused by
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, but
only with reference to information relating to such Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use in the
Registration Statement, the Prospectus, any preliminary prospectus or any
amendment or supplement thereto.
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to any of the three preceding paragraphs, such person
(hereinafter called the indemnified party) shall promptly notify the person
against whom such indemnity may be sought (hereinafter called the indemnifying
party) in writing and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including
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Incorporated -23- April __, 1996
any impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for (a)
the fees and expenses of more than one separate firm (in addition to any local
counsel) for all Underwriters and all persons, if any, who control any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, (b) the fees and expenses of more than one
separate firm (in addition to any local counsel) for the Company, its directors,
its officers who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either such Section and (c) the fees
and expenses of more than one separate firm (in addition to any local counsel)
for all Charitable Trusts and Glenmede and all persons, if any, who control any
Charitable Trust or Glenmede within the meaning of either such Section, and that
all such fees and expenses shall be reimbursed as they are incurred. In the
case of any such separate firm for the Underwriters and such control persons of
Underwriters, such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇. In
the case of any such separate firm for the Company and such directors, officers
and control persons of the Company, such firm shall be designated in writing by
the Company. In the case of any such separate firm for the Charitable Trusts
and Glenmede and such controlling persons of the Charitable Trusts and Glenmede,
such firm shall be designated in writing by the Trustee, or its appointed
successor. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
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Incorporated -24- April __, 1996
proceeding.
If the indemnification provided for in the first, second or third paragraph
of this Article XII is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraphs, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the Shares
or (ii) if the allocation provided by clause (i) 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
indemnifying party or parties on the one hand and of the indemnified party or
parties on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by Glenmede
on the one hand and the Underwriters on the other hand in connection with the
offering shall be deemed to be in the same respective proportions as the net
proceeds from the offering (before deducting expenses) received by the
Charitable Trusts and the total underwriting discounts and commissions received
by the Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate Public Offering Price of the Shares.
Notwithstanding the immediately preceding sentence, if the losses, claims,
damages or liabilities in respect of which contribution is being sought are
caused by any untrue statement or alleged untrue statement of a material fact or
any omission or alleged omission to state a material fact other than any such
statements or omissions based upon information (i) relating to Underwriters
furnished to the Company in writing by or on behalf of any Underwriter or (ii)
relating to Glenmede or the Charitable Trusts furnished to the Company in
writing by or on behalf of Glenmede or the Charitable Trusts, then the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand in connection with the offering of the Shares shall be deemed to be
in the same respective proportions as the net proceeds from the offering of the
Shares (before deducting expenses) received by the Charitable Trusts
(notwithstanding that the Company receives none of such proceeds) and the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover of the Prospectus, bear to the
aggregate Public Offering Price of the Shares; and, in such case, the parties
hereto agree that for purposes of this sentence only, the Charitable Trusts and
Glenmede would be deemed to receive no benefits from the offering of the Shares.
The relative fault of Glenmede
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Incorporated -25- April __, 1996
on the one hand and the Company on the one hand and the Underwriters on the
other hand 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 Glenmede or
the Charitable Trusts, the Company or the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
Glenmede and the Charitable Trusts, the Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Article XII were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred
to in the immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Article XII, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Shares underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages that such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Article XII are several in proportion
to the respective number of Shares they have agreed to purchase hereunder, and
not joint. The remedies provided for in this Article XII are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Article
XII and the representations and warranties of the Company, Glenmede and the
Charitable Trusts contained in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, Glenmede or any Charitable Trust or any person controlling
Glenmede or any Charitable Trust or the Company, its officers or directors or
any other person controlling the Company and (iii) acceptance of and payment for
any of the Shares.
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Incorporated -26- April __, 1996
XIII.
This Agreement shall be subject to termination in your absolute
discretion, by notice given to the Company, if (a) after the execution and
delivery of this Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, the
Philadelphia Stock Exchange, the National Association of Securities Dealers,
Inc., the Chicago Board Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of the Company shall have
been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have been
declared by New York State or Federal authorities, or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in your judgment, is material and
adverse and (b) in the case of any of the events specified in clauses (a)(i)
through (iv), such event singly or together with any other such event makes it,
in your judgment, impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus.
XIV.
This Agreement shall become effective upon the execution and delivery
hereof by the parties hereto.
If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Shares that it or they have agreed to purchase
hereunder on such date, and the aggregate number of Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate number of the Shares to be purchased on such
date, the other Underwriters shall be obligated severally in the proportions
that the number of Shares set forth opposite their respective names in Schedule
II bears to the aggregate number of Shares set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as you may
specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Shares that any Underwriter has agreed to
purchase pursuant to this Agreement be increased pursuant to this Article XIV by
an amount in excess of one-ninth of such number of Shares without
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Incorporated -27- April __, 1996
the written consent of such Underwriter. If, on the Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Shares and the
aggregate number of Shares with respect to which such default occurs is more
than one-tenth of the aggregate number of Shares to be purchased on such date,
and arrangements satisfactory to you, the Company and the Charitable Trusts for
the purchase of such Shares are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any non-
defaulting Underwriter, the Company, Glenmede or the Charitable Trusts. In any
such case either you, the Company, Glenmede or the Charitable Trusts shall have
the right to postpone the Closing Date, but in no event for longer than seven
days, in order that required changes, if any, in the Registration Statement and
in the Prospectus or in any other documents or arrangements may be effected.
Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of either the Company or the
Sellers to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason either the Company or the Sellers shall be
unable to perform their obligations under this Agreement, the Company or the
Sellers, as the case may be, will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and disbursements
of their counsel) reasonably incurred by such Underwriters in connection with
this Agreement or the offering contemplated hereunder.
This Agreement may be signed in two or more counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
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Incorporated -28- April __, 1996
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
Very truly yours,
SUN COMPANY, INC.
By: _____________________________
Name:
Title:
THE CHARITABLE TRUSTS named in
Schedule I hereto, acting severally
By: THE GLENMEDE TRUST COMPANY,
Trustee for the Charitable Trusts
and not in its individual capacity
By: _____________________________
Name:
Title:
THE GLENMEDE TRUST COMPANY, in
its individual capacity
By: _____________________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated -29- April __, 1996
Accepted, April __, 1996
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
CS FIRST BOSTON CORPORATION
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
Acting severally on behalf of
themselves and the several
Underwriters named
in Schedule II.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: ____________
Name:
Title:
SCHEDULE I
Number of
Shares
Charitable Trust To Be Sold
---------------- ----------
The Pew Memorial Trust 7,623,958
The J. ▇▇▇▇▇▇ ▇▇▇ Freedom Trust 1,796,351
The ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ Trust 1,023,509
The ▇.▇. ▇▇▇, ▇▇. Charitable Trust 908,597
The Medical Trust 396,176
----------
Total 11,748,591
==========
SCHEDULE II
Number of
Shares
Underwriter To Be Sold
----------- ----------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
CS First Boston Corporation
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
__________
Total 11,748,591
==========
