Exhibit (1)A
ECOLAB INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
January 23, 2001
To the several Underwriters named
in the respective Terms Agreements
hereinafter described
Dear Ladies and Gentlemen:
Ecolab Inc., a Delaware corporation ("ECOLAB" or the "COMPANY"), proposes
to issue and sell its senior unsecured debt securities (the "DEBT SECURITIES")
in one or more offerings on the terms and conditions determined at the time of
sale to the underwriters named in Annex I hereto (the "UNDERWRITERS" or you),
for whom you (the "REPRESENTATIVE" or you) are acting as representative. The
Debt Securities will be issued pursuant to an indenture dated as of November 1,
1996, as amended and restated as of January 9, 2001 (the "INDENTURE") between
the Company and Bank One, National Association, as trustee (the "TRUSTEE").
From time to time, the Company may enter into one or more terms agreements
in the form set forth in Annex I hereto (each a "TERMS AGREEMENT") that provide
for the sale of such designated Debt Securities to, and the purchase and
offering thereof by, the Underwriters named therein which terms will include the
underwriter or underwriters named therein, whether acting alone in the sale of
Debt Securities or as members of an underwriting syndicate, and the provisions
set forth herein (except for provisions which relate to securities other than
Debt Securities designated in the applicable Terms Agreement) will be
incorporated by reference in any such Terms Agreement. This Underwriting
Agreement and the applicable Terms Agreement, including the provisions
incorporated therein by reference, are herein referred to as this "AGREEMENT."
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The Company
represents, warrants and agrees that:
(a) A registration statement on Form S-3 (No. 333-14771), including a
prospectus relating to the Debt Securities of the Company for the
registration of such securities under the Securities Act of 1933, as
amended (the "SECURITIES ACT"), has (i) been prepared by the Company in
material conformity with the requirements of the Securities Act and the
rules and regulations thereunder (the "RULES AND REGULATIONS") of the
United States Securities and Exchange Commission (the "COMMISSION"), (ii)
been filed with the Commission under the Securities Act and (iii) become
effective under the Securities Act; and the Indenture has been qualified
under the Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE
ACT"). Copies of such registration statement and
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any amendments thereto have been delivered by the Company to you. As used
in this Agreement, "EFFECTIVE DATE" means the date and the time as of which
such registration statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission and at the time
of filing of the Company's most recent Annual Report on Form 10-K;
"REGISTRATION STATEMENT" means the registration statement as amended to the
date of this Agreement, including all documents incorporated or deemed
incorporated by reference therein and the exhibits thereto; "BASIC
PROSPECTUS" means the prospectus included in the Registration Statement;
"PRELIMINARY PROSPECTUS" means any preliminary form of Prospectus (as
defined herein) specifically relating to designated Debt Securities, in the
form first filed with, or transmitted for filing to, the Commission
pursuant to Rule 424 of the Rules and Regulations; "PROSPECTUS SUPPLEMENT"
means any prospectus supplement specifically relating to designated Debt
Securities, in the form first filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Securities Act; "PROSPECTUS"
means the Basic Prospectus together with the Prospectus Supplement, except
that if such Basic Prospectus is amended or supplemented on or prior to the
date on which the Prospectus Supplement was first filed pursuant to Rule
424, the term "Prospectus" will refer to the Basic Prospectus as so amended
or supplemented and as supplemented by the Prospectus Supplement; "BASIC
PROSPECTUS," "PROSPECTUS", "PRELIMINARY PROSPECTUS" and "PROSPECTUS
SUPPLEMENT" include in each case the documents, if any, filed by the
Company with the Commission pursuant to the United States Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and incorporated by
reference therein; and "SUPPLEMENT" and "AMENDMENT" will be deemed to refer
to and include any documents incorporated by reference pursuant to Item 12
of Form S-3 under the Securities Act that are filed subsequent to the date
of the Basic Prospectus by the Company with the Commission pursuant to the
Exchange Act. Any reference to any amendment to the Registration Statement
will be deemed to include any annual report of the Company filed with the
Commission pursuant to Section 13(a) or 15(d) of the Exchange Act after the
Effective Date that is incorporated by reference in the Registration
Statement;
(b) The Registration Statement conforms in all material respects, and
the Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus will, when they become effective
or are filed with the Commission, as the case may be, conform in all
material respects, to the requirements of the Securities Act and the Rules
and Regulations thereunder and do not and will not, as of the applicable
Effective Date (as to the Registration Statement and any amendment thereto)
and as of the applicable filing date (as to the Prospectus and any
amendment or supplement thereto), 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 (in the case of the Prospectus, in
light of the circumstances in which they were made) not misleading;
PROVIDED, HOWEVER, that no representation or warranty is made as to (i)
that part of the Registration Statement which will constitute the Statement
of Eligibility on Form T-1 ("FORM T-1") under the Trust Indenture Act of
the Trustee and (ii) 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 by or on behalf of any
Underwriter specifically for use in the Registration Statement or the
Prospectus;
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(c) The Indenture conforms in all material respects to the
requirements of the Trust Indenture Act and the applicable rules and
regulations thereunder;
(d) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, when they became effective or were filed with
the Commission, as the case may be, conformed in all material respects with
the requirements of the Securities Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder, and, when read
together with the Prospectus on the filing date of the Prospectus and any
amendment or supplement thereto, none of such documents 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 not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder and,
when read together with the Prospectus on the dates such documents become
effective or are filed with the Commission, as the case may be, will 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;
(e) The Company and each of its subsidiaries that is a significant
subsidiary, as defined in Rule 405 of the Securities Act (individually a
"SIGNIFICANT SUBSIDIARY" and, collectively, the "SIGNIFICANT SUBSIDIARIES")
have been duly incorporated and validly existing as corporations in good
standing under the laws of their respective jurisdictions of incorporation,
are duly qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective ownership or
lease of property or the conduct of their respective businesses requires
such qualification, except where the failure to be so qualified and in good
standing would not be reasonably expected to have a material adverse effect
on the consolidated financial condition, results of operations or business
of the Company and its subsidiaries, taken as a whole (a "MATERIAL ADVERSE
EFFECT"), and where so qualified, have all corporate power and authority
necessary to own, lease or operate their respective properties and to
conduct the businesses in which they are engaged as described in the
Prospectus;
(f) The Debt Securities have been duly and validly authorized by the
Company and, when duly executed, issued and delivered by the Company
pursuant to this Agreement, and authenticated by the Trustee pursuant to
the provisions of the Indenture, against payment therefor by the
Underwriters as provided in this Agreement, will constitute valid and
legally binding obligations of the Company entitled to the benefits of the
Indenture and enforceable against the Company in accordance with their
terms, except as the enforceability thereof may be subject to (i)
bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer,
moratorium or similar laws affecting creditors' rights generally and (ii)
general principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity); and the Debt Securities,
when issued and delivered, will conform in all material respects to the
description thereof contained in the Prospectus;
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(g) The Indenture has been duly authorized by the Company, and when
duly executed by the proper officers of the Company (assuming due execution
and delivery by the Trustee) and delivered by the Company, will constitute
a valid and legally binding obligation of the Company enforceable against
the Company in accordance with its terms, except as the enforceability
thereof may be subject to (i) bankruptcy, insolvency, reorganization,
fraudulent conveyance or transfer, moratorium or similar laws affecting
creditors' rights generally and (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding at
law or in equity); and the Indenture conforms in all material respects to
the description thereof contained in the Prospectus;
(h) This Agreement has been duly authorized, executed and delivered
by the Company;
(i) The execution, delivery and performance of this Agreement and the
Indenture by the Company, and the consummation of the transactions
contemplated hereby and thereby, and the issuance and delivery of the Debt
Securities 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, lien, charge or encumbrance upon any property or 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 it or
any of them is bound or to which any of the property or assets of the
Company or any of its Significant Subsidiaries is subject, except for such
conflicts, breaches, violations or defaults which would not have a Material
Adverse Effect; nor will such action result in any violation of the
provisions of the Restated Certificate of Incorporation or by-laws of the
Company; nor will such action result in any violation of the provisions of
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 material properties or assets
except for violations which would not have a Material Adverse Effect; and,
except for the registration of the Debt Securities under the Securities
Act, the qualification of the Indenture under the Trust Indenture Act, and
such consents, approvals, authorizations, registrations or qualifications
as may be required under the Exchange Act and applicable state or foreign
securities or other Blue Sky laws in connection with the purchase and
distribution of the Debt Securities by the Underwriters, no consent,
approval, authorization or order of, or filing, registration or
qualification of or with, any such court or governmental agency or body is
required for the execution, delivery and performance of this Agreement or
the Indenture by the Company and the consummation by the Company of the
transactions contemplated hereby and thereby, in each case other than such
consents, approvals, authorizations, registrations or qualifications which
would not have a Material Adverse Effect;
(j) Neither the Company nor any of its Significant Subsidiaries has
sustained, since the date of the latest financial statements included or
incorporated by reference in the Prospectus, any loss or interference with
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree in any such case, which would have a Material
Adverse Effect, otherwise than as set forth or contemplated in the
Prospectus; and, since such date, there has not been a material adverse
change, in or affecting the general
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financial condition or results of operations or business of the Company and
its Significant Subsidiaries, taken as a whole (a "MATERIAL ADVERSE
CHANGE"), otherwise than as set forth or contemplated in the Prospectus;
(k) PricewaterhouseCoopers L.L.P., which has certified certain
financial statements of the Company, which statements appear in the
Prospectus or are incorporated by reference therein, is an independent
public accountant as required by the Securities Act and the Rules and
Regulations;
(l) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included or incorporated by reference in the Prospectus present fairly in
all material respects the financial condition and results of operations of
the Company and its consolidated subsidiaries at the dates and for the
periods indicated, and have been prepared in conformity with United States
generally accepted accounting principles applied on a consistent basis
throughout the periods involved, except as otherwise expressly set forth
therein;
(m) Except as described in the Registration Statement, Prospectus or
in documents incorporated therein by reference, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any material property or assets of the
Company or any of its Significant Subsidiaries is the subject which is
required to be disclosed in the Registration Statement, Prospectus or in
documents incorporated therein by reference or which would reasonably be
expected to have a Material Adverse Effect; and to the Company's knowledge,
no such proceedings are threatened by governmental authorities or by
others;
(n) Neither the Company nor any of its Significant Subsidiaries is in
default in any material respect, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default, in the
due performance or observance of any term, covenant or condition contained
in any material indenture, mortgage, deed of trust, loan agreement or other
agreement to which the Company or any of its Significant Subsidiaries is a
party or by which it or any of them is or may be bound or to which any of
the properties or assets of the Company or any of its Significant
Subsidiaries is subject, except for such default which would not have a
Material Adverse Effect; and
(o) Any certificate signed by any officer of the Company and
delivered to the Underwriters or to counsel for the Underwriters pursuant
to this Agreement will be deemed a representation and warranty by the
Company to each Underwriter as to the matters covered thereby.
2. PURCHASE OF THE DEBT SECURITIES BY THE UNDERWRITERS. On the basis of
the representations and warranties contained herein, and subject to the terms
and conditions set forth herein, the Company agrees to sell to the Underwriters,
and each of the Underwriters, severally and not jointly, agrees to purchase from
the Company, at the price and/or principal amount, as the case may be, set forth
in the Terms Agreement attached hereto as Annex I, together with interest
thereon accrued from the date specified in the Terms Agreement and in
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the respective amounts of the designated Debt Securities set forth opposite the
name of each such Underwriter in Schedule I to Annex I to such Terms Agreement.
3. OFFERING OF THE DEBT SECURITIES BY THE UNDERWRITERS. The Underwriters
propose to offer the Debt Securities for sale upon the terms and conditions set
forth in the Prospectus and any amendment or supplement thereto relating to the
Debt Securities.
4. DELIVERY OF AND PAYMENT FOR THE DEBT SECURITIES. Delivery of and
payment for the Debt Securities will be made at such location as may be agreed
upon by the Underwriters and the Company at 9:00 a.m., New York City time, on
the third business day following the date of this Agreement, or at such other
time and date as will be agreed upon (each such date and time of payment and
delivery being herein called the "CLOSING DATE") in the manner set forth in the
applicable Terms Agreement. Upon delivery, the Debt Securities will be
registered in such names and in such denominations as the Underwriters will
request in writing not less than two business days prior to the Closing Date.
For the purpose of expediting the checking and packaging of the certificates for
the Debt Securities, the Company will make the certificates representing the
Debt Securities available for inspection by the Underwriters or counsel for the
Underwriters in New York, New York, not later than 2:00 p.m., New York City
time, on the business day prior to the Closing Date.
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities in book-entry form that will be deposited
with, or on behalf of, a depository or its nominee, identified in the Prospectus
Supplement relating to such series. In such a case, the manner of delivery of
such global securities will be set forth in the applicable Terms Agreement.
5. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees:
(a) (i) to prepare the Prospectus setting forth the terms of the Debt
Securities and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission's close of business on the
second business day following the execution and delivery of this Agreement;
(ii) to make no further amendment or supplement to the Registration
Statement or to the Prospectus prior to the applicable Closing Date,
unless, if reasonably practicable, the Underwriters or their
representatives have had a reasonable opportunity to review and comment
upon such amendment or supplement prior to its filing; (iii) to advise the
Underwriters promptly of any such amendment or supplement and to furnish
the Underwriters with a copy thereof; (iv) to file promptly all reports and
any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the
offering or sale of the Debt Securities; (v) during the same period, to
advise the Underwriters, promptly after it receives notice thereof, of (A)
the issuance by the Commission of any stop order or of any order preventing
or suspending the use of any Preliminary Prospectus or the Prospectus, (B)
the suspension of the qualification of the Debt Securities for offering or
sale in any jurisdiction or the initiation or threatening of any proceeding
for any such purpose or (C) any request by the Commission for the amending
or supplementing of the Registration Statement or the
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Prospectus or for additional information; and, in the event of the issuance
of any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) to furnish promptly to the Underwriters and to counsel for the
Underwriters a copy of the Registration Statement as originally filed with
the Commission, and each amendment thereto filed with the Commission,
including all consents and exhibits (other than those incorporated by
reference) filed therewith;
(c) to deliver promptly to the Underwriters such number of the
following documents as the Underwriters will reasonably request: (i)
conformed copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding exhibits
other than this Agreement, the Indenture and such other exhibits as the
Underwriters may reasonably request); (ii) each Preliminary Prospectus, the
Prospectus and any amended or supplemented Prospectus; and (iii) any
document incorporated by reference in the Prospectus (excluding exhibits
thereto); and, if the delivery of a prospectus is required at any time
after the Effective Date in connection with the offering or sale of the
Debt Securities, and if at such time any events will have occurred as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it will be
necessary to amend or supplement the Prospectus (or to file under the
Exchange Act any document incorporated by reference in the Prospectus) to
comply with the Securities Act or the Exchange Act, to notify the
Underwriters and, upon the reasonable request of the Underwriters, to file
such document and to prepare and furnish without charge to each Underwriter
as many copies as the Underwriters may from time to time reasonably request
of an amended or supplemented Prospectus which will correct such statement
or omission or effect such compliance;
(d) to file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company, be required by the
Securities Act or requested by the Commission;
(e) prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus and, promptly after
filing with the Commission any document incorporated by reference in the
Prospectus or any Prospectus pursuant to Rule 424 of the Rules and
Regulations, to furnish a copy thereof to the Underwriters;
(f) as soon as practicable after the date of this Agreement and every
Terms Agreement relating to designated Debt Securities, to make generally
available to its Holders an earnings statement of the Company and its
Significant Subsidiaries (which need not be audited) complying with Section
11(a) of the Securities Act and the Rules and Regulations (including, at
the option of the Company, Rule 158);
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(g) promptly from time to time, to use all reasonable efforts to take
such action as the Underwriters may reasonably request to qualify the Debt
Securities for offering and sale under the securities laws of such
jurisdictions as the Underwriters may reasonably request and to comply with
such laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for so long as may be necessary to complete the
distribution of the Debt Securities; PROVIDED, HOWEVER, that in connection
therewith, the Company will not be required to qualify as a foreign
corporation, to file a general consent to service of process in any
jurisdiction where it is not so qualified or to subject itself to taxation
in respect of doing business in any jurisdiction in which it is not
otherwise so subject;
(h) if, and to the extent specified in the Terms Agreement attached
hereto as Annex I, designated Debt Securities are to be duly authorized for
listing on a national securities exchange, to apply for any listing of such
designated Debt Securities on such national securities exchange and to use
its best efforts to complete that listing, subject only to official notice
of issuance, prior to the relevant Closing Date;
(i) to apply the net proceeds from the sale of the Debt Securities
being sold by the Company as set forth in the Prospectus; and
(j) during the period beginning from the date of the Terms Agreement
and continuing to and including the Business Day after the Closing Date
with respect to such Terms Agreement, the Company will not offer, sell,
contract to sell or otherwise dispose of any debt securities which are
substantially similar to the Debt Securities designated for offer and sale,
without the prior written consent of the Underwriters, which consent will
not be unreasonably withheld
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6. EXPENSES. The Company agrees to pay all costs, expenses and fees
incident to (i) the preparation, printing, filing and distribution under the
Securities Act of the Registration Statement (including financial statements and
exhibits), each Preliminary Prospectus and all amendments and supplements
thereto; (ii) the printing and delivery of the Prospectus and all amendments or
supplements thereto; (iii) the printing and delivery of this Agreement, the Blue
Sky Memorandum and all other agreements, memoranda, correspondence and other
documents printed and delivered in connection with the offering of the Debt
Securities; (iv) the registration or qualification of the Debt Securities for
offer and sale under the securities or Blue Sky laws of the several states
(including in each case the reasonable fees and disbursements of counsel for the
Underwriters relating to such registration or qualification and memoranda
relating thereto); (v) filings and clearance with the National Association of
Securities Dealers, Inc. ("NASD"), in connection with the offering, if
applicable; and (vi) furnishing such copies of the Registration Statement, the
Prospectus and all amendments and supplements thereto as may be reasonably
requested for use in connection with the offering or sale of the Debt Securities
by the Underwriters; it is understood, however, that, except as provided in this
Section 6 and Sections 8 and 11 hereof, the Underwriters will pay all of their
own costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Debt Securities by them, and any advertising expenses
connected with any offers they may make.
7. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters to purchase and pay for any Debt Securities are subject to the
accuracy in all material respects, when made, and on each Closing Date, of the
representations and warranties of the Company contained herein, to the
performance by the Company of its obligations hereunder and under the Terms
Agreement attached hereto as Annex I, and to each of the following additional
terms and conditions:
(a) At the applicable Closing Date, the Prospectus will have been
timely filed with the Commission in accordance with Section 5(a) hereof; no
stop order suspending the effectiveness of the Registration Statement or
any part thereof will have been issued, and no proceeding for that purpose
will have been initiated or threatened by the Commission; any request of
the Commission for inclusion of additional information in the Registration
Statement or the Prospectus or otherwise will have been complied with to
the Underwriters' reasonable satisfaction;
(b) The general counsel of the Company (the "General Counsel"), will
have furnished to the Underwriters his opinion, addressed to the
Underwriters and dated the Closing Date, in form and substance reasonably
satisfactory to counsel for the Underwriters to the effect that:
(i) The Company and each of its Significant Subsidiaries have
been duly incorporated and are validly existing as corporations in
good standing (or the equivalent) under the laws of their respective
jurisdictions of incorporation; are duly qualified to do business and
are in good standing as foreign corporations in each jurisdiction in
which their ownership or lease of property or the conduct of their
businesses requires such qualification and where the failure to be so
qualified and in good standing would have a Material Adverse Effect;
where so
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qualified, each Significant Subsidiary has all corporate power and
authority necessary to own, lease or operate its properties and to
conduct business;
(ii) to such counsel's knowledge, there are no contracts or other
documents which are required to be described in the Prospectus or
filed as exhibits to the Registration Statement by the Securities Act
or by the Rules and Regulations which have not been described in the
Prospectus or filed as exhibits to the Registration Statement or
incorporated therein by reference under the Rules and Regulations;
(iii) the documents incorporated by reference in the Prospectus
(other than the financial statements and related schedules therein and
all other financial and statistical data included or incorporated by
reference therein or omitted therefrom, as to which such counsel need
express no opinion), when they were filed with the Commission complied
as to form in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission
thereunder;
(iv) to such counsel's knowledge, and other than as set forth in
the Registration Statement, the Prospectus or any documents
incorporated by reference, there are no legal or governmental
proceedings pending to which the Company or any of its Significant
Subsidiaries is a party or of which any material property or assets of
the Company or any of its Significant Subsidiaries is the subject
which, if determined adversely to the Company or any of its
Significant Subsidiaries, would have a Material Adverse Effect; and to
such counsel's knowledge, no such proceedings are threatened; and
(v) the issuance and sale of the Debt Securities being delivered
on the Closing Date by the Company and the compliance by the Company
with all of the provisions of this Agreement and the Indenture, and
the consummation of the transactions contemplated hereby and thereby,
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
known to such counsel to which the Company or any of its Significant
Subsidiaries is a party or by which any of them is bound or to which
any of the property or assets of the Company or any of its Significant
Subsidiaries is subject, except for such conflicts, breaches,
violations or defaults which would not have a Material Adverse Effect,
nor will such actions result in any violation of the provisions of any
state or federal 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 Significant Subsidiaries
or any of their material properties or assets, except for such
violations as would not have a Material Adverse Effect;
(c) Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois), counsel to the
Company, will have furnished to the Underwriters its opinion, as counsel to
the
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Company, addressed to the Underwriters and dated the Closing Date, in form
and substance reasonably satisfactory to counsel for the Underwriters, to
the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation and in good standing under the laws of
Delaware and has all corporate power and corporate authority necessary
to execute, deliver and perform all of its obligations under this
Agreement, the Indenture and the Debt Securities;
(ii) with respect to each of the Debt Securities, when (A) the
Registration Statement, as finally amended (including all necessary
post-effective amendments), becomes effective; (B) an appropriate
Prospectus Supplement with respect to the Debt Securities has been
prepared, delivered and filed in compliance with the Securities Act
and the applicable rules and regulations thereunder; (C) the
Underwriting Agreement with respect to the Debt Securities is duly
executed and delivered by the Company and the other parties thereto;
(D) the directors and appropriate officers of the Company have taken
all necessary corporate action to approve the issuance and terms of
the Debt Securities and related matters; (E) the Indenture pursuant to
which the Debt Securities are to be issued shall have been qualified
under the Trust Indenture Act, and duly executed and delivered by the
Company and the trustee under such Indenture; and (F) the Debt
Securities have been duly executed and authenticated in accordance
with the provisions of such Indenture and duly delivered to and paid
for by the Underwriters pursuant to this Agreement, upon payment of
the agreed-upon consideration therefor, the Debt Securities, when
issued and sold in accordance with such Indenture and any related
supplement thereto and this Underwriting Agreement, will be valid and
binding obligations of the Company, enforceable against the Company,
in accordance with their respective terms, except that such
enforcement may be subject to or limited by (1) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally; (2)
general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law); (3) public policy
considerations which may limit the rights of parties to obtain certain
remedies; (4) requirements that a claim with respect to any securities
denominated other than in United States dollars (or a judgment
denominated other than in United States dollars in respect of such
claim) be converted into United States dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law; and (5)
governmental authority to limit, delay or prohibit the making of
payments outside the United States or in foreign currency or
composition currency;
(iii) the Indenture has been duly authorized by the Company, and
when duly executed by the proper officers of the Company (assuming due
execution and delivery by the Trustee) and delivered by the Company,
will constitute a valid and legally binding obligation of the Company
enforceable against the Company in accordance with its terms, except
to the extent that enforcement thereof may be limited by (A)
bankruptcy, insolvency, reorganization, fraudulent conveyance or
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transfer, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (B) general principles of
equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity); and the Indenture conforms in all
material respects to the description thereof contained in the
Prospectus;
(iv) this Agreement should have been duly authorized, executed
and delivered by the Company;
(v) the Registration Statement has become effective under the
Securities Act, and the Indenture has been qualified under the Trust
Indenture Act, and no stop order suspending the effectiveness of the
Registration Statement has been issued and, to the knowledge of such
counsel, no proceeding for that purpose is pending or threatened by
the Commission;
(vi) the statements contained in the Prospectus under
"Description of the Notes" and "Description of Debt Securities"
insofar as they describe federal statutes, rules and regulations, or
portions thereof, constitute accurate descriptions thereof in all
material respects;
(vii) the Registration Statement, as of the Effective Date, and
the Prospectus, as of the date it was filed with the Commission, and
any further amendments or supplements thereto made by the Company
prior to the applicable Closing Date (in each case other than the
financial statements and related schedules therein and all other
financial and statistical data included or incorporated by reference
therein or omitted therefrom and other than the Form T-1, as to which
such counsel need express no opinion) appear on their face to comply
as to form in all material respects with the requirements of the
Securities Act and the Rules and Regulations; and the Indenture
conforms in all material respects to the requirements of the Trust
Indenture Act and the applicable rules and regulations thereunder; and
(viii) the execution and delivery by the Company of each of the
Indenture, the Debt Securities and this Agreement and the performance
by the Company of its obligations under each of the Indenture, the
Debt Securities and this Agreement, each in accordance with its terms,
do not (A) conflict with the Restated Certificate of Incorporation or
by-laws of the Company; (B) constitute a violation of or a default
under the provisions of any state or federal statute or any order,
rule or regulation known to such counsel of any state or federal court
or governmental agency or body having jurisdiction over the Company
except for such violations as would not have a Material Adverse
Effect; and, except for the registration of the Debt Securities under
the Securities Act and such consents, approvals, authorizations,
registrations or qualifications (1) as may be required under the
Securities Act, Exchange Act, the Rules and Regulations, the Trust
Indenture Act, any order, rule or regulation made or established by
any regulatory authority or the NASD and applicable state securities
or Blue Sky laws in connection with the purchase and distribution of
the Debt Securities by the
12
Underwriters and (2) whose absence both individually or in the
aggregate would not have a Material Adverse Effect and would not have
a Material Adverse Effect on the sale of the designated Debt
Securities, 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
and the Indenture by the Company and the consummation by the Company
of the transactions contemplated hereby and thereby; PROVIDED that the
foregoing opinion is limited to those consents, approvals,
authorizations, orders, registrations and qualifications under laws
which, in the counsel's experience, are normally applicable to
transactions of the type contemplated by this Agreement.
In rendering the opinions required by subsections (b) and (c) of this
Section 7, the General Counsel and Skadden, Arps, Slate, Xxxxxxx & Xxxx
(Illinois), respectively, may (i) state that their opinion is limited to
matters governed by the federal laws of the United States of America, the
laws of the State of New York or the General Corporation Law of the State
of Delaware and (ii) rely (to the extent such counsel deems proper and
specifies in their opinion) as to matters involving the application of laws
covered by supporting opinion upon the opinion of other counsel of good
standing, PROVIDED that such other counsel is reasonably satisfactory to
counsel for the Underwriters and furnishes a copy of its opinion to the
Underwriters. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied upon certificates of officers of
the Company and its Significant Subsidiaries and certificates of public
officials. In addition, the General Counsel, in rendering the opinions
required by clauses (i) and (ii) of subsection (b) with respect to the
subsidiaries, may rely on opinions rendered by counsel employed by such
subsidiaries;
Each of the General Counsel and Skadden, Arps, Slate, Xxxxxxx & Xxxx
(Illinois) will have furnished to the Underwriters written statements,
addressed to the Underwriters and dated the Closing Date, in form and
substance reasonably satisfactory to the Underwriters, to the effect that
such counsel has acted as counsel to the Company in connection with the
preparation of the Registration Statement, and, based on the foregoing,
such counsel does not believe that the Registration Statement (other than
the financial statements and related schedules and all other financial data
included or incorporated by reference therein or omitted therefrom, and
other than the Form T-1, as to which such counsel will express no opinion
or belief), as of the Effective Date, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or that
the Prospectus (other than the financial statements and related schedules
and all other financial and statistical data included or incorporated by
reference therein or omitted therefrom, and other than the Form T-1, as to
which such counsel will express no opinion or belief), as of its date and
the applicable Closing Date, contains any untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. The General Counsel will also
have furnished to the Underwriters a written statement, addressed to the
Underwriters and dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriters, to the effect that he does not believe
that any document incorporated by reference in the Prospectus (other
13
than the financial statements and related schedules and all other financial
and statistical data included or incorporated by reference therein or
omitted therefrom, and other than the Form T-1, as to which such counsel
will express no opinion or belief) contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which they
were made, not misleading;
The foregoing opinions and statements may be qualified by statements
to the effect that (i) such counsel does not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for the statements made in
the Prospectus under the captions relating to the designated Debt
Securities, insofar as such statements relate to the Debt Securities and
concern legal matters and (ii) as to facts necessary to the determination
of materiality, such counsel is relying upon the opinions of officers and
other representatives of the Company;
(d) The Underwriters will have received from counsel for the
Underwriters such opinion or opinions, dated the Closing Date, with respect
to the issuance and sale of the Debt Securities, the Registration
Statement, the Prospectus and other related matters as the Underwriters may
reasonably require;
(e) At the Closing Date, counsel for the Underwriters will have been
furnished with such documents, certificates and information as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Debt Securities as contemplated herein and in each
Terms Agreement and related proceedings, or to evidence the accuracy of any
of the representations or warranties, or the fulfillment of any of the
conditions, herein and therein contained;
(f) At the time of execution of this Agreement and each Terms
Agreement, the Underwriters will have received from PricewaterhouseCoopers
L.L.P. with respect to the Company letters, in form and substance
reasonably satisfactory to the Underwriters, addressed to the Underwriters
and dated the date hereof and thereof (i) confirming that they are
independent public accountants with respect to the Company and its
Significant Subsidiaries within the meaning of the Securities Act and (ii)
stating, as of the date hereof and thereof (or with respect to matters
involving changes or developments since the respective dates as of which
specified financial information is given in the Prospectus, as of a date
not more than five business days prior to the date hereof or thereof), the
conclusions and findings of such firm with respect to the financial
information and other matters as provided in SAS No. 72;
(g) With respect to the letters of PricewaterhouseCoopers L.L.P.
referred to in the preceding paragraph and delivered to the Underwriters
concurrently with the execution of this Agreement (the "INITIAL LETTER")
and each Terms Agreement, the Company will have furnished to the
Underwriters letters (the "BRING-DOWN LETTERS") of such accountants,
addressed to the Underwriters and dated the Closing Date (i) confirming
that they are independent public accountants within the meaning of the
Securities Act and the Rules and Regulations, (ii) stating, as of the date
of the bring-down
14
letter (or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is given
in the Prospectus, as of a date not more than five business days prior to
the date of the bring-down letter), the conclusions and findings of such
firm with respect to the financial information and other matters covered by
the initial letter and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letter;
(h) At each Closing Date, the Company will have furnished to the
Underwriters a certificate, dated the Closing Date, of its officers,
reasonably satisfactory to the Underwriters as to the accuracy of the
representations and warranties of the Company herein at and as of such
Closing Date, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Closing Date, as
to the matters set forth in subsections (a) and (i) of this Section 7 and
as to such other matters as the Representatives may reasonably request;
(i) Neither the Company nor any of its Significant Subsidiaries will
have sustained since the respective dates as of which information is given
in the Registration Statement or the Prospectus or in any document
incorporated by reference therein any Material Adverse Change, other than
as set forth or contemplated or incorporated by reference in the Prospectus
or in any of the documents incorporated by reference therein, the effect of
which is, in the reasonable judgment of the Underwriters, so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Debt Securities being delivered on
such Closing Date on the terms and in the manner contemplated in the
Prospectus;
(j) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, (i) no downgrading will have occurred in the
rating accorded the Company's securities by any "nationally recognized
statistical rating organization," as that term is defined by the Commission
for purposes of Rule 436(g)(2) of the Rules and Regulations and (ii) no
such organization will have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any of the Company's securities the effect of which, in any such case
described in clause (i) or (ii), is in the counsel's judgment (after
consultation with the Company) so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the designated Debt Securities on the terms and in the manner
contemplated in the Prospectus; and
(k) Subsequent to the execution and delivery of this Agreement, none
of the following will have occurred (i) a suspension or material limitation
in trading in securities generally on the New York Stock Exchange, (ii) a
general moratorium on commercial banking activities in New York declared by
either federal or New York State authorities, or (iii) the material
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the
effect of any such event specified in this clause (iii) in the judgment of
the Underwriters makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the designated Debt Securities on the
terms and in the manner contemplated by the Prospectus.
15
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement will be deemed to be in compliance with the
provisions hereof only if they are in substance reasonably satisfactory to
counsel for the Underwriters. The Company may rely on any waiver of such
conditions given by the Underwriters or counsel to the Underwriters as if given
by the Underwriters.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages,
liabilities and judgments caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus (as amended or supplemented if the Company will 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 insofar as such losses, claims, damages, liabilities
or judgments are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any
Underwriters furnished in writing to the Company by or on behalf of any
Underwriter expressly for use therein, and except further that the Company
will not be liable with respect to any losses, claims, damages, liabilities
or judgments arising out of or based on any untrue statements or alleged
untrue statement or omission or alleged omission to state a material fact
in any Preliminary Prospectus which is corrected in the Prospectus if the
person or entity asserting such loss, claim, damage, liability or judgment
purchased Debt Securities from such Underwriter, but was not sent or given
a copy of the Prospectus at or prior to the written confirmation of the
sale of such Debt Securities to such person or entity in any case where
such delivery is required by the Securities Act if the Company has
previously furnished copies thereof in sufficient quantity to such
Underwriter and the loss, claim, damage, liability or judgment of such
Underwriter results from an untrue statement or omission of a material fact
contained in the Preliminary Prospectus.
(b) In case any action will be brought against any Underwriter or any
person controlling such Underwriter, based upon any Preliminary Prospectus,
the Registration Statement or the Prospectus or any amendment or supplement
thereto and with respect to which indemnity may be sought against the
Company, such Underwriter will promptly notify the Company in writing, and
the Company will assume the defense thereof, including the employment of
counsel reasonably satisfactory to such indemnified party and payments of
all fees and expenses. Any Underwriter or any such controlling person will
have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such
counsel will be at the expense of such Underwriter or such controlling
person unless (i) the employment of such counsel has been specifically
authorized in writing by the Company, (ii) the Company has failed to assume
the defense and employ counsel or (iii) the named parties to any such
action (including any impleaded parties) include both such Underwriter or
such controlling person and the Company and such Underwriter or such
controlling person have been advised by such counsel that there may be one
or more legal defenses available to it
16
which are different from or additional to those available to the Company
(in which case the Company will not have the right to assume the defense of
such action on behalf of such Underwriter or such controlling person). The
Company will not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
fees and expenses of more than one separate firm of attorneys (in addition
to any local counsel) for all such Underwriters and controlling persons,
which firm will be designated in writing by the representatives and that
all such fees and expenses will be reimbursed as they are incurred. The
Company will not be liable for any settlement of any such action effected
without its written consent, but, if settled with the written consent of
the Company, the Company agrees to indemnify and hold harmless any
Underwriters and any such controlling person from and against any loss or
liability by reason of such settlement. Notwithstanding the immediately
preceding sentence, if in any case where the fees and expenses of counsel
are at the expense of the indemnifying party and an indemnified party will
have requested the indemnifying party to reimburse the indemnified party
for such fees and expenses of counsel as incurred, such indemnifying party
agrees that it will be liable for any settlement of any action effected
without its written consent if (i) such settlement is entered into more
than thirty business days after the receipt by such indemnifying party of
the aforesaid request and (ii) such indemnifying party has failed to
reimburse the indemnified party in accordance with such request for
reimbursement prior to the date of such settlement. No indemnifying party
will, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which
any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement, and any person controlling the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, to the same extent as the foregoing indemnity from the Company to each
Underwriter but only with reference to information relating to such
Underwriter furnished in writing by or on behalf of such Underwriter
expressly for use in the Registration Statement, the Prospectus or any
Preliminary Prospectus. In case any action will be brought against the
Company, any of its directors, any such officer or any person controlling
the Company based on the Registration Statement, the Prospectus or any
Preliminary Prospectus and in respect of which indemnity may be sought
against any Underwriter, the Underwriter will have the rights and duties
given to the Company (except that if the Company will have assumed the
defense thereof, such Underwriter will not be required to do so, but may
employ separate counsel therein and participate in the defense thereof but
the fees and expenses of such counsel will be at the expense of such
Underwriter), and the Company, its directors, any such officers and any
person controlling the Company will have the rights and duties given to the
Underwriter by Section 8(b) hereof.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or judgments
17
referred to therein, then each indemnifying party, in lieu of indemnifying
such indemnified party, will contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages,
liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits actually received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Debt
Securities to which such loss, claim, damage, liability or judgment relates
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative
fault of the Company and the Underwriters in connection with the statements
or omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Underwriters will be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters bear to
the total price to the public of the Debt Securities, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault
of the Company and the Underwriters will be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. With respect to any such
Underwriter, such relative fault will also be determined by reference to
the extent (if any) to which such losses, claims, damages or liabilities
(or actions in respect thereof) with respect to any Preliminary Prospectus
result from the fact that such Underwriter sold Debt Securities to a person
to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus, if the Company had
previously furnished copies thereof to such Underwriter.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) 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 which 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, liabilities or judgments referred
to in the immediately preceding paragraph will be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8, no Underwriter will be required to contribute
any amount in excess of the amount by which the total price at which the
Debt Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 8(d) are several in
proportion to the respective principal amount of Debt Securities purchased
by each of the Underwriters hereunder and not joint.
18
(e) The obligations of the Company under this Section 8 will be in
addition to any liability which the Company may otherwise have and will
extend upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Securities Act; and the
obligations of the Underwriters under this Section 8 will be in addition to
any liability which the respective Underwriters may otherwise have and will
extend, upon the same terms and conditions, to each officer and director of
the Company (including any person who, with his consent, is named in the
Registration Statement as about to become a director of the Company) and to
each person, if any, who controls the Company within the meaning of the
Securities Act.
9. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of the
Underwriters participating in an offering of Debt Securities fails at the
applicable Closing Date to purchase the Debt Securities which it or they are
obligated to purchase under the applicable Terms Agreement (the "DEFAULTED
SECURITIES"), then the Representative will have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representative has not completed such
arrangements within such 24-hour period, then:
(a) if the aggregate amount of Defaulted Securities does not exceed
10% of the aggregate amount of the Debt Securities to be purchased pursuant
to the Terms Agreement, the non-defaulting Underwriters named in such Terms
Agreement will be obligated to purchase the full amount thereof in the
proportions that their respective underwriting obligations thereunder bear
to the underwriting obligations of all such non-defaulting Underwriters; or
(b) if the aggregate amount of Defaulted Securities exceeds 10% of
the aggregate amount of the Debt Securities to be purchased pursuant to
such Terms Agreement, the Terms Agreement will terminate without any
liability on the part of any non-defaulting Underwriters.
No action taken pursuant to this Section 9 will relieve any defaulting
Underwriter from liability in respect of its default.
In the event of a default by any Underwriter or Underwriters as set forth
in this Section 9, either the Representative or the Company will have the right
to postpone the applicable Closing Date for a period not exceeding seven full
business days to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements.
19
10. TERMINATION. Except as provided in the applicable Prospectus
Supplement, the obligations of the Underwriters hereunder may be terminated by
the Underwriters which have agreed to purchase in the aggregate 50% or more of
the aggregate principal amount of Debt Securities by notice given to and
received by the Company prior to delivery of and payment for the Debt Securities
if, prior to that time, any of the events described in Sections 7(i),(j) and (k)
will have occurred or if the Underwriters will decline to purchase the Debt
Securities as permitted by Section 9.
11. EFFECT OF TERMINATION OF PRICING AGREEMENT OR NONDELIVERY OF
SECURITIES. If the Company fails to tender the Debt Securities for delivery to
the Underwriters, or if the Underwriters decline to purchase the Debt Securities
for any reason permitted under this Agreement, the Company will reimburse the
Underwriters for the reasonable fees and expenses of their counsel and for such
other out-of-pocket expenses that they incurred in connection with this
Agreement and the proposed purchase of the Debt Securities and upon demand, the
Company will pay the full amount hereof to the Representatives. If this
Agreement is terminated pursuant to Section 9 hereof by reason of the default of
one or more Underwriters, the Company will not be obligated to reimburse the
several Underwriters on account of those expenses.
12. NOTICES, ETC. All statements, requests, notices and agreements
hereunder will be in writing, and:
(a) if to the Underwriters, will be delivered or sent by mail, telex
or facsimile transmission as will be directed in the Terms Agreement
attached hereto as Annex I; and
(b) if to the Company, will be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: General Counsel (Facsimile: (612)
293-2573).
Any such statements, requests, notices or agreements will take effect at
the time of receipt thereof. The Company will be entitled to act and rely upon
any request, consent, notice or agreement given or made on behalf of the
Underwriters by the lead Underwriter.
20
13. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement will inure to
the benefit of and be binding upon the Underwriters, the Company, their
respective successors and the controlling persons and officers defined in
Section 8. This Agreement and the terms and provisions hereof are for the sole
benefit of only those persons. Nothing in this Agreement is intended or will be
construed to give any person other than the persons referred to in this Section
13, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein. No purchaser of the Debt Securities
from any Underwriter will be deemed a successor or assign by reason merely of
such purchase.
14. SURVIVAL. The respective indemnities, representations, warranties and
agreements of the Company and the Underwriters contained in this Agreement or
made by or on behalf of them, respectively, pursuant to this Agreement, will
survive the delivery of and payment for any Debt Securities and will remain in
full force and effect, regardless of any investigation made by or on behalf of
any of them or any person controlling any of them.
15. DEFINITION OF THE TERM "BUSINESS DAY." For purposes of this Agreement,
"Business Day" means any day on which the New York Stock Exchange, Inc., is open
for trading.
16. GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York without regard to the conflict
of laws principle thereof.
17. COUNTERPARTS. This Agreement may be executed in counterparts and, if
executed in more than one counterpart, the executed counterparts will each be
deemed to be an original but all such counterparts will together constitute one
and the same instrument.
18. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
21
If the foregoing correctly sets forth the agreement between the Company and
the Underwriters please indicate your acceptance in the space provided for that
purpose below.
Very truly yours,
ECOLAB INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
Confirmed and accepted as of the date
first above written:
Credit Suisse First Boston Corporation
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Director
Acting severally on behalf of itself
and the several Underwriters
ANNEX I
TO UNDERWRITING AGREEMENT
TERMS AGREEMENT
January 23, 2001
Credit Suisse First Boston Corporation
As representative of the
several Underwriters
named in Schedule I hereto
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Ladies and Gentlemen:
Ecolab Inc., a Delaware corporation (the "COMPANY"), proposes, subject to
the terms and conditions stated herein and in the Underwriting Agreement, dated
January 23, 2001 (the "UNDERWRITING AGREEMENT"), between the Company, on the one
hand, and Credit Suisse First Boston Corporation, Banc of America Securities
LLC, Chase Securities Inc. and Xxxxxxx Xxxxx Xxxxxx Inc. on the other hand, to
issue and sell to the Underwriters named in Schedule I hereto (the
"UNDERWRITERS") the Debt Securities specified in Schedule II hereto (the
"DESIGNATED SECURITIES"). Each of the provisions of the Underwriting Agreement
is incorporated herein by reference in its entirety, and will be deemed to be a
part of this Terms Agreement to the same extent as if such provisions had been
set forth in full herein. Each of the representations and warranties set forth
therein will be deemed to have been made at and as of the date of this Terms
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 1 of the Underwriting Agreement will be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined) and also a representation and
warranty as of the date of this Terms Agreement in relation to the Prospectus,
as amended or supplemented, relating to the Designated Securities which are the
subject of this Terms Agreement. Each reference to the Representative herein and
in the provisions of the Underwriting Agreement so incorporated by reference
will be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representative designated to act on behalf of each of the Underwriters of the
Designated Securities pursuant to the Underwriting Agreement and the addresses
of such Representatives are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us one of the counterparts hereof. Upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, will constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which will be submitted to
the Company for examination upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
2
Very truly yours,
ECOLAB INC.
By:
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
Accepted as of the date hereof:
Credit Suisse First Boston Corporation
On behalf of each of the Underwriters
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By:
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Director
SCHEDULE I TO ANNEX I
Underwriters Principal Amount
------------ ----------------
Credit Suisse First Boston Corporation ................... $
Chase Securities Inc. ....................................
Banc of America Securities LLC. ..........................
Xxxxxxx Xxxxx Xxxxxx Inc. ................................
Total .................................................... $
============
SCHEDULE II TO ANNEX I
UNDERWRITING AGREEMENT DATED _____________, ____
REGISTRATION STATEMENT NO. 333-14771
TITLE, PURCHASE PRICE AND DESCRIPTION OF DESIGNATED SECURITIES:
Title:
Aggregate Principal Amount:
Price to Public:
Purchase Price by Underwriters: (include accrued interest or
amortization, if any):
Sinking Fund Provisions:
Redemption Provisions:
Listing:
Other Provisions:
APPLICABLE SECURITIES AGREEMENT:
MATURITY:
INTEREST RATE:
INTEREST PAYMENT DATES:
TIME OF DELIVERY AND LOCATION:
NAMES AND ADDRESS OF REPRESENTATIVE:
Designated Representative: Credit Suisse First Boston Corporation
Address for Notices, etc.: Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000
OTHER TERMS: