Exhibit 1
EXECUTION COPY
CYTEC INDUSTRIES INC.
Underwriting Agreement
March 13, 0000
Xxx Xxxx, Xxx Xxxx
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
Cytec Industries Inc., a Delaware corporation (the "Company"), proposes to
sell to the underwriters named in Schedule II hereto (the "Underwriters"), for
whom you (the "Representatives") are acting as representatives, the principal
amount of its securities identified in Schedule I hereto (the "Securities"), to
be issued under an indenture (the "Indenture") dated as of March 15, 1998,
between the Company and PNC Bank, National Association, as trustee (the
"Trustee"). The terms of such sales, pursuant to this Agreement, are described
in Schedule I hereto. If the firm or firms listed in Schedule II hereto include
only the firm or firms listed in Schedule I hereto, then the terms
"Underwriters" and "Representatives", as used herein, shall each be deemed to
refer to such firm or firms.
1. Representations and Warranties. The Company represents and warrants
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to, and agrees with, each Underwriter as set forth below in this Section 1.
Certain terms used in this Section 1 are defined in paragraph (c) hereof.
(1) If the offering of the Securities is a Delayed Offering (as
specified in Schedule I hereto), paragraph (i) below is applicable and, if
the offering of the Securities is a Non-Delayed Offering (as so specified),
paragraph (ii) below is applicable.
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(1) The Company meets the requirements for the use of Form S-3
under the Securities Act of 1933, as amended (the "Act") and has filed
with the Securities and Exchange Commission (the "Commission") a
registration statement (the file number of which is set forth in
Schedule I hereto) on such Form, including a basic prospectus, for
registration under the Act of the offering and sale of the Securities.
The Company may have filed one or more amendments thereto, and may
have used a Preliminary Final Prospectus, each of which has previously
been furnished to you. Such registration statement, as so amended, has
become effective. The offering of the Securities is a Delayed Offering
and, although the Basic Prospectus may not include all the information
with respect to the Securities and the offering thereof required by
the Act and the rules thereunder to be included in the Final
Prospectus, the Basic Prospectus is responsive to all the disclosure
requirements of the Act and the rules and regulations thereunder as of
the Effective Date. The Company will next file with the Commission
pursuant to Rules 415 and 424(b)(2) or (5) a final supplement to the
form of prospectus included in such registration statement relating to
the Securities and the offering thereof. As filed, such final
prospectus supplement shall include all required information with
respect to the Securities and the offering thereof and, except to the
extent the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you
prior to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the Basic
Prospectus and any Preliminary Final Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made
therein. The Company shall not file a Rule 462(b) Registration
Statement without the consent of the Representatives.
(2) The Company meets the requirements for the use of Form S-3
under the Act and has filed with the Commission a registration
statement (the file number of which is set forth in Schedule I hereto)
on such Form, including a basic prospectus, for registration under the
Act of the offering and sale of the Securities. The Company may have
filed one or more amendments thereto, including a Preliminary Final
Prospectus, each of which has previously been furnished to you. The
Company will next file with the Commission either (x) a final
prospectus supplement relating to the Securities in accordance with
Rules 430A and 424(b)(1) or (4), or (y) prior to the effectiveness of
such registration statement, an amendment to such registration
statement, including the form of final prospectus supplement. In the
case of clause (x), the Company has included in such registration
statement, as amended at the Effective Date, all information (other
than Rule 430A Information) required by the Act and the rules
thereunder to be included in the Final Prospectus with respect to the
Securities and the offering thereof. As filed, such final prospectus
supplement or such amendment and form of final prospectus supplement
shall contain all Rule 430A Information, together with all other such
required information, with respect to the Securities and the
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offering thereof and, except to the extent the Representatives shall
agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time or,
to the extent not completed at the Execution Time, shall contain only
such specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the Execution
Time, will be included or made therein. The Company shall not file a
Rule 462(b) Registration Statement without the consent of the
Representatives.
(2) On the Effective Date, the Registration Statement did or will,
and when the Final Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date, the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the Act, the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (with respect to documents incorporated by
reference in the Registration Statement) and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act") and the respective rules
thereunder; on the Effective Date, the Registration Statement did not or
will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to
make the statements therein not misleading; on the Effective Date and on
the Closing Date the Indenture did or will comply in all material respects
with the requirements of the Trust Indenture Act and the rules thereunder;
and, on the Effective Date, the Final Prospectus, if not filed pursuant to
Rule 424(b), did not or will not, and on the date of any filing pursuant to
Rule 424(b) and on the Closing Date, the Final Prospectus (together with
any supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
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representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in reliance
upon and in conformity with information furnished in writing to the Company
by or on behalf of any Underwriter through the Representatives expressly
and specifically for inclusion in the Registration Statement or the Final
Prospectus (or any supplement thereto).
(3) The terms which follow, when used in this Agreement, shall have
the meanings indicated. "Effective Date" shall mean each date that the
Registration Statement and any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective and each date after the date hereof on which a document
incorporated by reference in the Registration Statement is filed.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto. "Basic Prospectus" shall mean
the prospectus referred to in paragraph (a) above contained in the
Registration Statement at the Effective Date including, in the case of a
Non-Delayed Offering, any Preliminary Final Prospectus. "Preliminary Final
Prospectus" shall mean any preliminary prospectus supplement to the Basic
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Prospectus which describes the Securities and the offering thereof and is
used prior to filing of the Final Prospectus. "Final Prospectus" shall mean
the prospectus supplement relating to the Securities that is first filed
pursuant to Rule 424(b) after the Execution Time, together with the Basic
Prospectus or, if, in the case of a Non-Delayed Offering, no filing
pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities, including the Basic Prospectus,
included in the Registration Statement at the Effective Date. "Registration
Statement" shall mean the registration statement referred to in paragraph
(a) above, including incorporated documents, exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date (as hereinafter
defined), shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A. "Rule 415", "Rule 424", "Rule
430A", "Rule 462(b)" and "Regulation S-K" refer to such rules or regulation
under the Act. "Rule 430A Information" means information with respect to
the Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration statement
and any amendments thereto filed pursuant to Rule 462(b) relating to the
offering covered by the Registration Statement. Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form
S-3 which were filed under the Exchange Act on or before the Effective Date
of the Registration Statement or the issue date of the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus, as the case may
be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall
be deemed to refer to and include the filing of any document under the
Exchange Act after the Effective Date of the Registration Statement or the
issue date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be, deemed to be incorporated therein by
reference. A "Non-Delayed Offering" shall mean an offering of securities
which is intended to commence promptly after the effective date of a
registration statement, with the result that, pursuant to Rules 415 and
430A, all information (other than Rule 430A Information) with respect to
the securities so offered must be included in such registration statement
at the effective date thereof. A "Delayed Offering" shall mean an offering
of securities pursuant to Rule 415 which does not commence promptly after
the effective date of a registration statement, with the result that only
information required pursuant to Rule 415 need be included in such
registration statement at the effective date thereof with respect to the
securities so offered. Whether the offering of the Securities is a Non-
Delayed Offering or a Delayed Offering shall be set forth in Schedule I
hereto.
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(4) No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission.
(5) Except as described in the Final Prospectus, since the respective
dates as of which information is given in the Registration Statement and
the Final Prospectus, there has not been (i) any increase in the long-term
debt of the Company and its consolidated subsidiaries in an amount in
excess of $10,000,000, other than indebtedness incurred to pay obligations
under the rate lock agreements of the Company described in the Final
Prospectus or (ii) except as set forth or contemplated in the Final
Prospectus, any material adverse change in or affecting the general
affairs, financial position, stockholders' equity or results of operations
of the Company and its subsidiaries, taken as a whole (a "Material Adverse
Effect").
(6) The Company and each of Cytec Fiberite Inc., Cytec Global
Holdings Inc. and Cytec Technology Corp. (the "Material Subsidiaries") have
been duly incorporated and are validly existing as corporations in good
standing under the laws of the State of Delaware, with corporate power and
authority to own their properties and conduct their business as described
in the Final Prospectus, to execute and deliver this Agreement, any Delayed
Delivery Contracts and the Indenture and to issue and sell the Securities
as herein contemplated and have been duly qualified as foreign corporations
for the transaction of business and are in good standing under the laws of
each other jurisdiction in which they own or lease properties or conduct
any business so as to require such qualification, except where failure to
be so qualified would not reasonably be expected to have a Material Adverse
Effect.
(7) The Company and each of its Material Subsidiaries have good title
to all manufacturing plants or facilities (together with the land upon
which it is erected and fixtures comprising a part thereof) located in the
United States of America (excluding territories and possessions) the net
book value (as defined in the Indenture) of which exceeds 1.5% of
Consolidated Net Tangible Assets (as defined in the Indenture), except any
such plant or facility which is a pollution control or other facility
financed by obligations issued by a state or local governmental unit and
described in Sections 141(a), 142(a)(5), 142(a)(6), 142(a)(10) or 144(a) of
the Internal Revenue Code of 1986, as amended (or any successor provision
thereof), or which in the opinion of the Board of Directors of the Company
is not of material importance to the total business conducted by the
Company and its subsidiaries as a whole (each, a "Principal Property" and
collectively, the "Principal Properties"), in each case free and clear of
all liens, encumbrances and defects except such as are described in the
Final Prospectus or such as do not materially affect the value of such
Principal Property and do not interfere with the use made of such Principal
Property by the Company and its Material Subsidiaries, except where such
impairment or interference would not reasonably be expected to have a
Material Adverse Effect; and the Principal Properties held under lease by
the Company and the Material Subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not material
and do not interfere with the use made of such Principal
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Property by the Company and the Material Subsidiaries except where such
interference would not reasonably be expected to have a Material Adverse
Effect.
(8) The execution, delivery and performance of this Agreement, any
Delayed Delivery Contracts and the Indenture, the issuance and sale of the
Securities 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 or instrument of
which the Company or any of the Material Subsidiaries is a party or by
which the Company or any of the Material Subsidiaries is bound or to which
any of the property or assets of the Company or any of the Material
Subsidiaries is subject, except where such breach or violation would not
reasonably be expected to have a Material Adverse Effect, nor will such
action result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company 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 the Material Subsidiaries or any of
their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Securities or the
consummation by the Company of the transactions contemplated by this
Agreement, except the registration under the Act of the Securities,
qualification of the Indenture under the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may
be required under state or foreign securities or Blue Sky laws in
connection with the purchase and distribution of the Securities by the
Underwriters.
(9) Neither the Company nor any of the Material Subsidiaries is (i)
in violation of its Certificate of Incorporation or By-laws or (ii) in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound, where such
default would be reasonably likely to have a Material Adverse Effect.
(10) The Indenture has been duly authorized by the Company and when
executed and delivered by the Company will be a legal, valid and binding
agreement of the Company enforceable in accordance with its terms, except
as the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally and general principles of equity.
(11) The Securities, when issued in accordance with this Agreement and
the Indenture, will have been duly authorized by the Company and when
executed and delivered by the Company will constitute legal, valid and
binding obligations of the Company enforceable in accordance with their
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and general principles of equity.
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(12) The Delayed Delivery Contracts, if any, have been duly authorized
by the Company and when executed and delivered by the Company will
constitute legal, valid and binding obligations of the Company enforceable
in accordance with their terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally and general principles of
equity.
(13) This Agreement has been duly authorized, executed and delivered
by the Company.
(14) The Securities, the Delayed Delivery Contracts, if any, and the
Indenture conform in all material respects to the description thereof
contained in the Registration Statement and Final Prospectus.
(15) KPMG Peat Marwick LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
(16) All legal or governmental proceedings, contracts or documents of
a character required to be described in the Registration Statement or the
Final Prospectus or to be filed as an exhibit to the Registration Statement
have been so described or filed as required.
(17) Other than as set forth or contemplated in the Final Prospectus,
there are no legal or governmental proceedings pending to which the Company
or any of the Material Subsidiaries is a party or of which any property of
the Company or any of the Material Subsidiaries is the subject which,
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect; and, to the best of the Company's knowledge, there
are no proceedings threatened or contemplated by governmental authorities
or threatened by others which would reasonably be expected to have a
Material Adverse Effect.
(18) The consolidated financial statements included or incorporated by
reference in the Registration Statement and the Final Prospectus present
fairly the consolidated financial position of the Company and its
subsidiaries as of the dates indicated and the consolidated results of
operations and the consolidated cash flows of the Company and its
subsidiaries for the periods specified; such financial statements, except
as described therein, have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis during the
periods involved.
(19) The Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act").
(20) Neither the Company nor any of its affiliates as defined within
Section 517.021 of the Florida Statutes does business with the government
of
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Cuba or with any person or affiliate located in Cuba within the meaning of
Section 517.075, Florida Statutes.
(21) Other than as set forth or contemplated in the Final Prospectus,
each of the Company and the Material Subsidiaries are in material
compliance with all applicable federal, state and local environmental laws
and regulations, including those applicable to emissions to the
environment, waste management and waste disposal (collectively,
"Environmental Laws"), except for such noncompliance as would not, to the
best knowledge of the Company, reasonably be expected to have a Material
Adverse Effect.
(22) Other than as set forth or contemplated in the Final Prospectus,
(i) there is no claim under any Environmental Law, including common law,
pending or, to the best knowledge of the Company, threatened or
contemplated against the Company or the Material Subsidiaries (an
"Environmental Claim") which would reasonably be expected to have a
Material Adverse Effect and (ii) to the knowledge of the Company, under
applicable law, there are no past or present actions, activities,
circumstances, events or incidents, including releases of any material into
the environment, that could form the basis of any Environmental Claim
against the Company or the Material Subsidiaries which would reasonably be
expected to have a Material Adverse Effect.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
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upon the representations and warranties herein set forth, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto the principal amount of the Securities set forth opposite such
Underwriter's name in Schedule II hereto, except that, if Schedule I hereto
provides for the sale of such Securities pursuant to delayed delivery
arrangements, the respective principal amount of such Securities to be purchased
by the Underwriters shall be as set forth in Schedule II hereto less the
respective principal amount of Contract Securities determined as provided below.
Securities to be purchased by the Underwriters are herein sometimes called the
"Underwriters' Securities" and Securities to be purchased pursuant to Delayed
Delivery Contracts as hereinafter provided are herein called "Contract
Securities".
If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts"), substantially in the form of
Schedule III hereto but with such changes therein as the Company may authorize
or approve. The Underwriters will endeavor to make such arrangements and, as
compensation therefor, the Company will pay to the Representatives, for the
account of the Underwriters, on the Closing Date, the percentage set forth in
Schedule I hereto of the principal amount of the Securities for which such
Delayed Delivery Contracts are made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. The Company will enter into Delayed Delivery Contracts in all
cases where sales of Contract Securities arranged by the Underwriters have been
approved by the Company but, except as the Company may otherwise agree, each
such Delayed Delivery Contract must be for not less than the minimum principal
amount set forth in Schedule I
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hereto and the aggregate principal amount of Contract Securities may not exceed
the maximum aggregate principal amount set forth in Schedule I hereto. The
Underwriters will not have any responsibility in respect of the validity or
performance of any Delayed Delivery Contracts. The principal amount of
Securities to be purchased by each Underwriter as set forth in Schedule II
hereto shall be reduced by an amount equal to the total principal amount of
Contract Securities multiplied by a fraction, the numerator of which is the
principal amount of Securities set forth opposite the name of such Underwriter
and the denominator of which is the aggregate principal amount set forth in
Schedule II hereto, except to the extent that you determine that such reduction
shall be otherwise than in such proportion and so advise the Company in writing;
provided, however, that the total principal amount of Securities to be purchased
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by all Underwriters shall be the aggregate principal amount set forth in
Schedule II hereto less the aggregate principal amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for the Underwriters'
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Securities shall be made on the date and at the time specified in Schedule I
hereto (or such later date not later than five business days after such
specified date as the Representatives shall designate), which date and time may
be postponed by agreement between the Representatives, acting jointly and
without regard to any agreement among underwriters, and the Company or as
provided in Section 8 hereof (such date and time of delivery and payment for the
Underwriters' Securities being herein called the "Closing Date"). Delivery of
the Underwriters' Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Company by certified or official bank check or checks
drawn on or by a New York Clearing House bank and payable in same day funds or
as otherwise may be agreed as set forth in Schedule I hereto. Delivery of the
Underwriters' Securities shall be made at such location as the Representatives
shall reasonably designate at least one business day in advance of the Closing
Date and payment for the Securities shall be made at the office specified in
Schedule I hereto. Certificates for the Underwriters' Securities shall be
registered in such names and in such denominations as the Representatives may
request not less than one full business day in advance of the Closing Date.
The Company agrees to have the Underwriters' Securities available for
inspection, checking and packaging by the Representatives in New York, New York,
not later than 1:00 PM on the business day prior to the Closing Date.
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4. Agreements. The Company agrees with the several Underwriters that:
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(1) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereto, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment to the Registration
Statement or supplement (including the Final Prospectus or any Preliminary
Final Prospectus) to the Basic Prospectus unless the Company has furnished
you a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object on a timely
basis. Subject to the foregoing sentence, the Company will cause the Final
Prospectus, properly completed, and any supplement thereto to be filed with
the Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly advise the
Representatives (i) when the Registration Statement, if not effective at
the Execution Time, and any amendment thereto, shall have become effective,
(ii) when the Final Prospectus, and any supplement thereto, shall have been
filed with the Commission pursuant to Rule 424(b) or when any Rule 462(b)
Registration Statement shall have been filed with the Commission, (iii)
when, prior to termination of the offering of the Securities, any amendment
to the Registration Statement shall have been filed or become effective, or
any document that would be incorporated therein by reference shall have
been filed, (iv) of any request by the Commission at any time when a
prospectus relating to the Securities is required to be delivered under the
Act for any amendment of the Registration Statement or supplement to the
Final Prospectus or for any additional information relating to the offering
of the Securities, (v) of the issuance by the Commission at any time when a
prospectus relating to the Securities is required to be delivered under the
Act of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatened institution of any proceeding
for that purpose and (vi) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the initiation or threatened initiation of any
proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
(2) If, at any time, prior to the completion of the distribution of
the Securities by the Underwriters (notification of completion to be sent
to the Company within 24 hours of such completion), when a prospectus
relating to the Securities is required to be delivered under the Act, any
event occurs as a result of which the Final Prospectus as then supplemented
would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall be
necessary, in the opinion of counsel for the Company, to amend the
Registration Statement or supplement the Final Prospectus to comply with
the Act or the Exchange Act or the respective rules thereunder, the Company
promptly will (i) advise the Underwriters promptly of the happening of such
event, (ii) prepare and file with the Commission, at the
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Company's expense, subject to the second sentence of paragraph (a) of this
Section 4, an amendment or supplement which will correct such statement or
omission or effect such compliance and (iii) supply any supplemented
Prospectus to you in such quantities as you may reasonably request.
(3) As soon as practicable, but in any event not later than eighteen
months after the Effective Date, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(4) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, copies of the Registration Statement and
documents incorporated by reference therein (not including the exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, as many copies of any Preliminary Final
Prospectus and the Final Prospectus and any supplement thereto as the
Representatives may reasonably request. The Company will pay the expenses
of printing or other production of all documents relating to the offering.
(5) The Company will arrange for the qualification of the Securities
offered by the Company for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in effect
so long as required for the distribution of the Securities, will arrange
for the determination of the legality of the Securities for purchase by
institutional investors and will pay the fee of the National Association of
Securities Dealers, Inc., in connection with its review, if any, of the
offering; provided, however, that the Company shall not be required to (i)
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qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but for
this Section 4(e), (ii) file any general consent to service of process or
(iii) subject itself to taxation in any such jurisdiction if it is not so
subject.
(6) The Company will furnish to the Representatives upon request,
without charge, for so long as any of the Securities shall remain
outstanding, up to a period of one year from the date hereof, (i) copies of
any reports or other communications which the Company shall send to its
stockholders as a class and (ii) copies of all annual, quarterly and
current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or
such other similar form as may be designated by the Commission and copies
of any other reports or financial statements furnished to or filed with any
national securities exchange on which any class of securities of the
Company is listed.
(7) The Company will furnish to the Representatives as early as
practicable prior to the time of purchase, but no later than two business
days prior thereto, a copy of the latest available unaudited interim
consolidated financial statements, if any, of the Company and its
subsidiaries which have been read by the Company's independent certified
public accountants, as stated in their letter to be furnished pursuant to
Section 5(f) of this Agreement.
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(8) The Company agrees to apply the net proceeds from the sale of the
Securities in the manner set forth under the caption "Use of Proceeds" in
the Final Prospectus.
(9) The Company agrees to pay all expenses, fees and taxes incident
to the performance of its obligations under this Agreement, including,
without limitation, (i) the preparation and filing of the Registration
Statement, each related preliminary prospectus, the Final Prospectus, any
documents incorporated by reference therein at or after the date thereof
and any amendments or supplements thereto, and the printing and furnishing
of copies of each thereof to the Underwriters and to dealers (including
costs of mailing and shipment), (ii) the preparation, issuance, execution,
authentication and delivery of any engraved Securities, (iii) the
qualification of the Securities for offering and sale under state laws and
the determination of their eligibility for investment under state law as
aforesaid (including the legal fees and filing fees and other disbursements
of counsel for the Underwriters) and the printing and furnishing of copies
of any blue sky surveys or legal investment surveys to the Underwriters and
to dealers, (iv) any listing of the Securities on any securities exchange
and any registration thereof under the Exchange Act, (v) any fees payable
to investment rating agencies with respect to the Securities, (vi) any
filing for review of the public offering of the Securities by the National
Association of Securities Dealers, Inc. and (vii) the fees and
disbursements of the Trustee. It is understood, however, that, except as
provided in (iii) above and Section 6 hereof, the Underwriters will pay all
of their own costs and expenses, including the fees of their counsel, any
transfer taxes, and any advertising expenses connected with any offers they
may make.
(10) The Company agrees to furnish to you, before filing with the
Commission subsequent to the effective date of the Registration Statement
and during the period referred to in paragraph (b) above, a copy of any
document proposed to be filed pursuant to Section 13, 14 or 15(d) of the
Exchange Act.
(11) The Company agrees to such other provisions as may be set forth
in Schedule I hereto.
5. Conditions to the Obligations of the Underwriters. The obligations of
-------------------------------------------------
the Underwriters to purchase the Underwriters' Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof and to the following additional conditions:
(1) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 12:00 Noon on the business day
following the day on which the public offering price was determined, if
such determination occurred after 3:00 PM New
16
York City time on such date; if filing of the Final Prospectus, or any
supplement thereto, is required pursuant to Rule 424(b), the Final
Prospectus, and any such supplement, shall have been filed in the manner
and within the time period required by Rule 424(b); and at the Closing Date
no stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(2) The Company shall have furnished to the Representatives the
opinion of Xxxxxx X. Xxxxxxx, Vice President, General Counsel and Secretary
of the Company, dated the Closing Date, to the effect that:
(1) each of the Company and the Material Subsidiaries has been
duly incorporated and is validly existing and, based solely on a
certificate of good standing, is in good standing under the laws of
the jurisdiction in which it is chartered or organized, with full
corporate power and authority to own its properties and conduct its
business as described in the Final Prospectus, and, based solely on
certificates of good standing or other similar certificates of public
officials and officers of the Company, is duly qualified to do
business as a foreign corporation and is in good standing under the
laws of each U.S. jurisdiction which requires such qualification
wherein it owns or leases a manufacturing facility and where its
failure to so qualify would reasonably be expected to have a Material
Adverse Effect;
(2) all outstanding shares of capital stock of the Material
Subsidiaries are owned by the Company either directly or by wholly
owned subsidiaries free and clear of any perfected security interest;
(3) the Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution
and delivery by the Trustee, constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with its
terms (subject to applicable bankruptcy, reorganization, insolvency,
fraudulent transfer, moratorium or other laws now or hereafter in
effect relating to creditors' rights generally and subject to general
principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, regardless
of whether in a proceeding at law or in equity); and the Securities
have been duly authorized by the Company and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters pursuant to this
Agreement, in the case of the Underwriters' Securities, or by the
purchasers thereof pursuant to Delayed Delivery Contracts, in the case
of any Contract Securities, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the Indenture
and enforceable against the Company in accordance with their terms
(subject to applicable bankruptcy, reorganization, insolvency,
fraudulent transfer, moratorium or other laws now or hereafter in
effect relating to creditors' rights generally and subject to general
principles of equity, including, without limitation,
17
concepts of materiality, reasonableness, good faith and fair dealing,
regardless of whether in a proceeding at law or in equity);
(4) to the knowledge of such counsel, there is no pending or
threatened suit or proceeding before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of
the Material Subsidiaries that would reasonably be expected to have a
Material Adverse Effect and is of a character required to be disclosed
in the Registration Statement which is not disclosed in the Final
Prospectus and there is no franchise, contract or other document of a
character required to be described in the Registration Statement or
Final Prospectus, or to be filed as an exhibit to the Registration
Statement, which is not described or filed as required and which
absence to be so described or filed would reasonably be expected to
have a Material Adverse Effect and the statements included in the Form
10-K for the fiscal year ended December 31, 1997, incorporated by
reference in the Final Prospectus describing any legal proceedings or
material contracts or agreements relating to the Company fairly
summarize such matters;
(5) this Agreement has been duly authorized, executed and
delivered by the Company;
(6) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and (assuming that
they have been duly authorized, executed and delivered by the
purchasers thereunder) are valid and binding agreements of the
Company;
(7) no consent, approval, authorization, order, registration or
qualification with any court or governmental agency or body is
required for the issue and sale of the Securities or the consummation
of the transactions contemplated herein or in any Delayed Delivery
Contracts, except the registration under the Act of the Securities,
qualification of the Indenture under the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications
as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in such opinion) as
have been obtained;
(8) the execution, delivery and performance of this Agreement,
any Delayed Delivery Contracts and the Indenture, the issue and sale
of the Securities and the consummation of the transactions herein
contemplated will not conflict with, result in a breach or violation
of any of the terms or provisions or constitute a default under the
Certificate of Incorporation or by-laws of the Company or the terms of
any indenture, loan agreement or other material agreement or
instrument known to such counsel (including, but not limited to,
mortgages and deeds of trust) to which the Company or any of the
Material Subsidiaries is a party or bound or to which any of the
property or assets of the Company or any of the Material Subsidiaries
is subject, except where such breach or violation
18
would not reasonably be expected to have a Material Adverse Effect, or
contravene any law, rule or regulation of the United States of America
or the State of New York or the General Corporation Law of the State
of Delaware or any judgment, order or decree known to such counsel to
be applicable to the Company or any of the Material Subsidiaries of
any court, regulatory body, administrative agency, governmental body
or arbitrator having jurisdiction over the Company or any of the
Material Subsidiaries;
(9) to the best of such counsel's knowledge, neither the Company
nor any of the Material Subsidiaries is in default in the performance
or observance of any material obligation, agreement covenant or
condition contained in any material indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound,
except where such default would not reasonably be expected to have a
Material Adverse Effect;
(10) the Form 10-K for the fiscal year ended December 31, 1997
and the Form 8-K dated September 30, 1997 incorporated by reference in
the Registration Statement and the Final Prospectus, when they were
filed (or, if an amendment with respect to any such document was
filed, when such amendment was filed), complied as to form in all
material respects with the Exchange Act (except as to the financial
statements and schedules and other financial and statistical data
contained or incorporated by reference therein as to which such
counsel need express no opinion);
(11) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement; and
(12) such other legal opinions with respect to the Securities as
may be set forth in Schedule I hereto.
Such counsel shall state that the Registration Statement has become
effective under the Act; any required filing of the Basic Prospectus, any
Preliminary Final Prospectus and the Final Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and within the
time period required by Rule 424(b); to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or
threatened.
Such counsel shall also state that such counsel had no reason to
believe that as of the Effective Date the Registration Statement contained
an untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that as of the
Closing Date the Final Prospectus includes an untrue statement of a
material fact or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading and the Registration Statement and
19
the Final Prospectus as amended or supplemented, and any further amendments
and supplements thereto made by the Company prior to the Closing Date
(other than the financial statements, including the notes thereto and
related schedules, and other financial data and accounting information
contained or incorporated by reference therein, as to which such counsel
need express no opinion), appeared on their face to be appropriately
responsive in all material respects to the requirements of the Act and the
rules and regulations thereunder.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Delaware, the State of New York or the United States, to the extent such
counsel deems proper and specifies in such opinion, upon the opinion of
other counsel of good standing whom such counsel believes to be reliable
and who are reasonably satisfactory to counsel for the Underwriters and (B)
as to matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and public officials.
References to the Final Prospectus in this paragraph (b) include any
supplements thereto at the Closing Date.
(3) The Company shall have furnished to the Representatives the
opinion of Cravath, Swaine & Xxxxx, counsel for the Company, dated the
Closing Date, to the effect that:
(1) based solely on a certificate from the Secretary of State of
the State of Delaware, the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Delaware, with full corporate power and authority under
such laws to own its properties and conduct its business as described
in the Final Prospectus;
(2) the statements set forth in the Final Prospectus under the
caption "Description of Notes," insofar as such statements constitute
a summary of the documents referred to therein, constitute fair
summaries of such documents. Securities conform in all material
respects to the description thereof contained in the Registration
Statement and Final Prospectus;
(3) the Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution
and delivery by the Trustee, constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with its
terms (subject to applicable bankruptcy, reorganization, insolvency,
fraudulent transfer, moratorium or other laws now or hereafter in
effect relating to creditors' rights generally from time to time in
effect and subject to general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and
fair dealing, regardless of whether in a proceeding at law or in
equity); and the Securities have been duly authorized by the Company
and, when executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the Underwriters
pursuant to this Agreement, in the case of the
20
Underwriters' Securities, or by the purchasers thereof pursuant to
Delayed Delivery Contracts, in the case of any Contract Securities,
will constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture and enforceable against the
Company in accordance with their terms (subject to applicable
bankruptcy, reorganization, insolvency, fraudulent transfer,
moratorium or other laws now or hereafter in effect relating to
creditors' rights generally from time to time in effect and subject to
general principles of equity, including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing,
regardless of whether in a proceeding at law or in equity);
(4) this Agreement has been duly authorized, executed and
delivered by the Company;
(5) the Registration Statement, at the time the Registration
Statement became effective, and the Final Prospectus, as of the
Closing Date (in each case except the financial statements and other
information of a statistical, accounting or financial nature included
therein (except the Statement of Eligibility (Form T-1) included as an
exhibit to the Registration Statement, as to which we do not express
any view), were appropriately responsive in all material respects to
the requirements of the Act and the Trust Indenture Act;
(6) no authorization, approval or other action by, and no notice
to, consent of, order of, or filing with, any United States Federal,
New York or, to the extent required under the General Corporation Law
of the State of Delaware, Delaware governmental authority or
regulatory body is required for the consummation of the transactions
contemplated by this Agreement, except such as have been obtained
under the Act or the Trust Indenture Act and such as may be required
under the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriters;
(7) the Indenture has been duly qualified under the Trust
Indenture Act; and
(8) such other legal opinions with respect to the Securities as
may be set forth in Schedule I hereto.
Such counsel shall state that the Registration Statement has become
effective under the Act; any required filing of the Basic Prospectus, any
Preliminary Final Prospectus and the Final Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and within the
time period required by Rule 424(b); to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or
threatened.
Such counsel shall also state that they have no reason to believe that
as of the Effective Date the Registration Statement (except the financial
statements and
21
other information of an accounting or financial nature included therein, or
incorporated by reference therein or omitted therefrom, and the Statement
of Eligibility on Form T-1 included as an exhibit to the Registration
Statement, as to which such counsel need express no view) contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that as of the
Closing Date the Final Prospectus includes an untrue statement of a
material fact or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Delaware, the State of New York or the United States, to the extent such
counsel deems proper and specifies in such opinion, upon the opinion of
other counsel of good standing whom such counsel believes to be reliable
and who are reasonably satisfactory to counsel for the Underwriters and (B)
as to matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and public officials.
References to the Final Prospectus in this paragraph (c) include any
supplements thereto at the Closing Date.
(4) The Representatives shall have received from Shearman & Sterling,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the issuance and sale of the Securities, the
Indenture, any Delayed Delivery Contracts, the Registration Statement, the
Final Prospectus (together with any supplement thereto) and other related
matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(5) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the chief financial officer of the Company, dated the Closing
Date, with respect to the matters set forth in (g) below and to the effect
that:
(1) to such person's knowledge, the representations and
warranties of the Company in this Agreement are true and correct in
all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date and the Company has complied in
all material respects with all the agreements and satisfied in all
material respects all the conditions on its part to be performed or
satisfied at or prior to the Closing Date; and
(2) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to such person's knowledge,
threatened.
22
(6) At the Execution Time, KPMG Peat Marwick LLP shall have furnished
to the Representatives a letter or letters (which may refer to letters
previously delivered to one or more of the Representatives), dated as of
the Execution Time, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within
the meaning of the Act and the Exchange Act and the respective applicable
published rules and regulations thereunder and stating in effect that:
(1) in their opinion the audited financial statements and
financial statement schedules and any pro forma financial statements
included or incorporated in the Registration Statement and the Final
Prospectus and reported on by them comply in form in all material
respects with the applicable accounting requirements of the Act and
the Exchange Act and the related published rules and regulations;
(2) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; a
reading of the minutes of the meetings of the stockholders, directors
and the executive, audit, compensation and pension committees of the
Company and its subsidiaries; and inquiries of certain officials of
the Company who have responsibility for financial and accounting
matters of the Company and its subsidiaries as to transactions and
events subsequent to the date of the most recent audited financial
statements in or incorporated in the Final Prospectus, nothing came to
their attention which caused them to believe that:
(1) any unaudited financial statements included or
incorporated in the Registration Statement and the Final
Prospectus do not comply in form in all material respects with
applicable accounting requirements of the Act and the Exchange
Act and with the published rules and regulations of the
Commission with respect to financial statements included or
incorporated in quarterly reports on Form 10-Q under the Exchange
Act; or said unaudited financial statements are not in conformity
with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements included or incorporated in the Registration Statement
and the Final Prospectus;
(2) with respect to the period subsequent to the date of
the most recent financial statements (other than any capsule
information), audited or unaudited, in or incorporated in the
Registration Statement and the Final Prospectus, there were any
changes, at a specified date not more than five business days
prior to the date of the letter, in the long-term debt of the
Company and its subsidiaries or capital stock of the Company or
decreases in the stockholders' equity of the Company or any other
changes in any balance sheet items as the Representatives may
reasonably request as compared with the amounts shown on the most
recent
23
consolidated balance sheet included or incorporated in the
Registration Statement and the Final Prospectus, or for the
period from the date of the most recent financial statements
included or incorporated in the Registration Statement and the
Final Prospectus to such specified date there were any decreases,
as compared with the corresponding period in the preceding year
or the preceding quarter in net sales, earnings from operations,
earnings before income taxes or in total or per share amounts of
net earnings of the Company and its subsidiaries available for
common stockholders or any other income statement items as the
Representatives may reasonably request, except in all instances
for changes or decreases set forth in such letter, in which case
the letter shall be accompanied by an explanation by the Company
as to the significance thereof unless said explanation is not
deemed necessary by the Representatives; or
(3) the amounts included in any unaudited "capsule"
information included or incorporated in the Registration
Statement and the Final Prospectus do not agree with the amounts
set forth in the unaudited financial statements for the same
periods or were not determined on a basis substantially
consistent with that of the corresponding amounts in the audited
financial statements included or incorporated in the Registration
Statement and the Final Prospectus;
(3) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Final Prospectus and in
Exhibit 12 to the Registration Statement, including the information
included or incorporated in Items 1, 2, 6, 7 and 11 of the Company's
Annual Report on Form 10-K, incorporated in the Registration Statement
and the Prospectus, and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated in the Company's Quarterly
Reports on Form 10-Q, incorporated in the Registration Statement and
the Final Prospectus, agrees with the accounting records of the
Company and its subsidiaries, excluding any questions of legal
interpretation; and
(4) if unaudited pro forma financial statements are included or
incorporated in the Registration Statement or the Final Prospectus, on
the basis of a reading of the unaudited pro forma financial
statements, carrying out certain specified procedures, inquiries of
certain officials of the Company and the acquired company who have
responsibility for financial and accounting matters, and proving the
arithmetic accuracy of the application of the pro forma adjustments to
the historical amounts in the pro forma financial statements, nothing
came to their attention which
24
caused them to believe that the pro forma financial statements do not
comply in form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the historical amounts
in the compilation of such statements.
References to the Final Prospectus in this paragraph (f) include any
supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the Closing
Date, KPMG Peat Marwick LLP shall have furnished to the Representatives a
letter or letters, dated as of the Execution Time, in form and substance
satisfactory to the Representatives, to the effect set forth above.
(7) (i) Neither the Company nor any of the Material Subsidiaries
shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Final 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, otherwise than as
set forth or contemplated in the Final Prospectus, and (ii) since the
respective dates as of which information is given in the Final Prospectus
there shall not have been any increase in the long-term debt of the Company
and its consolidated subsidiaries in an amount in excess of $10,000,000
other than indebtedness incurred to pay obligations under the rate lock
agreements of the Company described in the Final Prospectus or any change
in or affecting the general affairs, financial position, stockholder's
equity or results of operations of the Company and its subsidiaries, in
each case otherwise than as set forth or contemplated in the Final
Prospectus, the effect of which, in any such case described in clause (i)
or (ii), is in your judgment so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities being delivered at the time of purchase on the
terms and in the manner contemplated in the Final Prospectus.
(8) Subsequent to the Execution Time, there shall not have occurred
any downgrade in the rating of any securities of or guaranteed by the
Company by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g)(2) under the Act) and no such
organization shall have publicly announced that is has under surveillance
or review, with possible negative implications, its rating of any
securities of or guaranteed by the Company.
(9) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as
the Representatives may reasonably request.
(10) The Company shall have accepted Delayed Delivery Contracts in any
case where sales of Contract Securities arranged by the Underwriters have
been approved by the Company.
25
(11) The Company shall have performed such of its obligations under
this Agreement as are to be performed by the terms hereof at or before the
time of purchase.
(12) The Company agrees to such other conditions as may be set forth
in Schedule I hereto.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives and such
cancelation shall be without liability of any party to any other party. Notice
of such cancelation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall be
delivered at the office of Cravath, Swaine & Xxxxx, counsel for the Company, at
Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the Closing Date.
6. Reimbursement of Underwriters' Expenses. If the sale of the Securities
---------------------------------------
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 5 hereof is not satisfied or because of
any termination pursuant to Section 9 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally through
the Representatives upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of one Underwriters' counsel) approved by the
Representatives that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities.
7. Indemnification and Contribution. (a) The Company agrees to indemnify
--------------------------------
and hold harmless each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person who controls any Underwriter within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities (including the reasonable cost of investigation),
joint or several, to which each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter may
become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement for the registration of the
Securities as originally filed or in any amendment or post-effective amendment
thereof, or in the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred
26
by them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that (i) the Company will not be
-------- -------
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives expressly and specifically
for inclusion therein or that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification (Form T-1) under the
Trust Indenture Act of the Trustee and (ii) such indemnity with respect to any
untrue statement or omission of a material fact made in the Basic Prospectus or
any Preliminary Final Prospectus, or in any amendment thereof or supplement
thereto, shall not inure to the benefit of any Underwriter (or any of the
directors, officers, employees and agents of such Underwriter or any person
controlling such Underwriter) from whom the person asserting any such loss,
claim, damage or liability purchased the Securities which are the subject
thereof if such person did not receive a copy of the Final Prospectus (or the
Final Prospectus as amended or supplemented), excluding documents incorporated
therein by reference, at or prior to the confirmation of the sale of such
Securities to such person in any case where such delivery is required by the Act
and the untrue statement or omission of a material fact contained in such Basic
Prospectus or Preliminary Final Prospectus, or in such amendment thereof or
supplement thereto, was corrected in the Final Prospectus (or the Final
Prospectus as amended or supplemented). This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information furnished to the Company by or on behalf of
such Underwriter through the Representatives expressly and specifically for
inclusion in the documents referred to in the foregoing indemnity, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action. This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
-------- -------
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint
27
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party; provided, however, that in any event the indemnifying
-------- -------
party shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, representing the indemnified parties who are
parties to such action or actions). An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
An indemnifying party shall not be liable under this Section 7 to any
indemnified party regarding any settlement or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
is consented to by such indemnifying party.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 7 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or more of
the Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company and by the Underwriters from the
offering of the Securities; provided, however, that in no case shall any
-------- -------
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
the Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and of the Underwriters in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses), and
benefits received by
28
the Underwriters shall be deemed to be equal to the total underwriting discounts
and commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contribution were determined by pro rata allocation or
any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 7, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d). The obligations of the
Underwriters shall be several and not joint.
8. Default by an Underwriter. If any one or more Underwriters shall fail on
--------------------------
the Closing Date to purchase and pay for any of the Securities agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the amount
of Securities set forth opposite their names in Schedule II hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
-------- -------
that the aggregate principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in Schedule II hereto,
the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 8, the Closing Date shall be postponed for such period, not exceeding
five business days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
9. Termination. This Agreement shall be subject to termination in the
------------
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) there
shall have occurred a material suspension or limitation in trading in securities
generally on the
29
New York Stock Exchange, (ii) there shall have occurred a material suspension or
limitation in trading in the Company's securities on the New York Stock
Exchange, (iii) there shall not have occurred any downgrade in the rating of any
securities of or guaranteed by the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)(2)
under the Act) and no such organization shall have publicly announced that is
has under surveillance or review, with possible negative implications, its
rating of any securities of or guaranteed by the Company, (iv) a banking
moratorium shall have been declared either by Federal or New York State
authorities or (v) there shall have occurred any materially adverse change in
the financial markets or any outbreak or escalation of hostilities, declaration
by the United States of a national emergency or war or other calamity or crisis
the effect of which on financial markets is such as to make it, in the
reasonable judgment of the Representatives, impracticable or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by the
Final Prospectus (exclusive of any supplement thereto). If this Agreement is
terminated pursuant to this Section, such termination shall be without liability
of any party to any other party.
10. Representations and Indemnities to Survive. The respective agreements,
-------------------------------------------
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the Securities. The provisions of Sections 6
and 7 hereof shall survive the termination or cancelation of this Agreement.
11. Notices. All communications hereunder will be in writing and effective
--------
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telegraphed and confirmed to them, at the address specified in Schedule I
hereto; or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at Five Xxxxxx Xxxxxxxx Xxxxx, Xxxx Xxxxxxxx, XX 00000,
attention of the Secretary.
12. Successors. This Agreement will inure to the benefit of and be binding
-----------
upon the parties hereto, and the officers and directors and controlling persons
referred to in Section 7 hereof, and their respective successors, assigns,
executors and administrators. No other person, partnership, association, or
corporation (including a purchaser, as such purchaser, from any of the
Underwriters) shall acquire or have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
---------------
accordance with the laws of the State of New York.
14. Business Day. For purposes of this Agreement, "business day" means any
-------------
day on which the New York Stock Exchange is open for trading.
15. Miscellaneous. On December 8, 1997, Swiss Bank Corporation, of which
--------------
SBC Warburg Dillon Read is an indirect wholly owned subsidiary, announced its
intention to merge with Union Bank of Switzerland. References in this document
to
30
Swiss Bank Corporation include references to its successor entity following
completion of the merger.
References to the parties include references to their successors,
including, without limitation, an entity which assumes the rights and
obligations of the relevant party by operation of the law of the jurisdiction of
incorporation or domicile of such party.
16. Counterparts. This Agreement may be signed in any number of
-------------
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
31
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
CYTEC INDUSTRIES INC.,
By:/s/ X. X. Xxxxxx
-----------------
Name: X. X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
SBC Warburg Dillon Read Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Salomon Brothers Inc
By: SBC WARBURG DILLON READ INC.
By:
/s/ Xxxxxx Xxxxxxxx
------------------------
Name: Xxxxxx Xxxxxxxx
Title: Director
By:
/s/ Xxxxx X. Xxxxxx
------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
32
SCHEDULE I
Underwriting Agreement dated March 13, 1998
Registration Statement No. 333-3808
Representative(s): SBC Warburg Dillon Read Inc., Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co. Incorporated and Salomon Brothers Inc
Title, Purchase Price and Description of Securities:
Title: 6.50% Notes due March 15, 2003.
Principal Amount: $100,000,000.
Interest Rate: 6.50% per annum, commencing March 18,
1998, payable semiannually in arrears on
the dates set forth below, to holders of
record on the preceding March 1 and
September 1, as the case may be.
Interest Payment Dates: March 15 and September 15.
Date of Maturity: March 15, 2003.
Purchase Price (include accrued
interest or amortization, if
any): 99.298% principal amount plus accrued
interest, if any, from March 18, 1998.
Sinking Fund Provisions: None.
Redemption Provisions: The Securities are redeemable, in whole
or in part, at the option of the Company
at any time at a redemption price equal
to the greater of (i) 100% of the
principal amount of the Securities being
redeemed or (ii) as determined by a
Quotation Agent, the sum of the present
values of the remaining scheduled
payments of principal and interest on
the Securities being redeemed (not
including any portion of such payments
of interest accrued as of the date of
33
redemption) on a semiannual basis
(assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted
Treasury Rate plus 12.5 basis points
plus accrued interest thereon to the
date of redemption.
Other Provisions: None.
Title: 6.75% Notes due March 15, 2008.
Principal Amount: $100,000,000.
Interest Rate: 6.75% per annum, commencing March 18,
1998, payable semiannually in arrears on
the dates set forth below, to holders of
record on the preceding March 1 and
September 1, as the case may be.
Interest Payment Dates: March 15 and September 15.
Date of Maturity: March 15, 2008.
Purchase Price (include accrued
interest or amortization, if
any): 98.904% of principal amount plus accrued
interest, if any, from March 18, 1998.
Sinking Fund Provisions: None.
Redemption Provisions: The Securities are redeemable, in whole
or in part, at the option of the Company
at any time at a redemption price equal
to the greater of (i) 100% of the
principal amount of the Securities being
redeemed or (ii) as determined by a
Quotation Agent, the sum of the present
values of the remaining scheduled
payments of principal and interest on
the Securities being redeemed (not
including any portion of such payments
of interest accrued as of the date of
redemption) on a semiannual basis
(assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted
Treasury Rate plus 15 basis points plus
accrued interest thereon to the date of
redemption.
Other Provisions: None.
34
Closing Date, Time and Location: March 18, 1998, 9:30 a.m., at the
offices of Cravath, Swaine & Xxxxx,
Xxxxxxxxx Xxxxx, 000 Xxxxxx Xxxxxx.
Method of Payment for Underwriters' Securities: Wire transfer in same-day
funds.
Type of Offering: Delayed Offering.
Delayed Delivery Arrangements: None.
Additional provisions pursuant to Section 4(k): None.
Additional opinions pursuant to Section 5(b)(xii) or 5(c)(viii): None.
Modification of items to be covered by the letter from KPMG Peat Marwick LLP
delivered pursuant to Section 5(f) at the Execution Time: None.
Additional conditions pursuant to Section 5(l): None.
SCHEDULE II
Underwriter Principal Principal
----------- Amount of 6.50% Amount of 6.75%
Notes to Notes to
be Purchased be Purchased
------------------- -------------------
SBC Warburg Dillon Read Inc................ $ 23,500,000 $ 23,500,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, 23,500,000 23,500,000
Incorporated...............................
Xxxxxx Xxxxxxx & Co. Incorporated.......... 23,500,000 23,500,000
Salomon Brothers Inc....................... 23,500,000 23,500,000
Credit Lyonnais Securities (USA) Inc....... 3,000,000 3,000,000
First Union Capital Markets, Division of
Wheat First Securities Inc................. 3,000,000 3,000,000
$100,000,000 $100,000,000
Total...................................... ============ ============
SCHEDULE III
Delayed Delivery Xxxxxxxx
, 00
XXX Xxxxxxx Dillon Read Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
World Financial Center
North Tower
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Cytec Industries Inc. (the
"Company"), and the Company agrees to sell to the undersigned, on March ,
1998, (the "Delivery Date"), $ principal amount of the Company's
(the "Securities") offered by the Company's Prospectus dated , 19 ,
and related Prospectus Supplement dated March , 1998, receipt of a copy of
which is hereby acknowledged, at a purchase price of % of the principal
amount thereof, plus [accrued interest] [amortization of original issue
discount], if any, thereon from , 19 , to the date of payment and
delivery, and on the further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be made
on or before 11:00 AM, New York City time, on the Delivery Date to or upon the
order of
the Company in New York Clearing House (next day) funds, at your office or at
such other place as shall be agreed between the Company and the undersigned,
upon delivery to the undersigned of the Securities in definitive fully
registered form and in such authorized denominations and registered in such
names as the undersigned may request by written or telegraphic communication
addressed to the Company not less than five full business days prior to the
Delivery Date. If no request is received, the Securities will be registered in
the name of the undersigned and issued in a denomination equal to the aggregate
principal amount of Securities to be purchased by the undersigned on the
Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date, and the obligation of the Company to sell and
deliver Securities on the Delivery Date, shall be subject to the conditions (and
neither party shall incur any liability by reason of the failure thereof) that
(1) the purchase of Securities to be made by the undersigned, which purchase the
undersigned represents is not prohibited on the date hereof, shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject, and (2) the Company, on or before the Delivery Date,
shall have sold to certain underwriters (the "Underwriters") such principal
amount of the Securities as is to be sold to them pursuant to the Underwriting
Agreement referred to in the Prospectus and Prospectus Supplement mentioned
above. Promptly after completion of such sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith. The obligation of the
undersigned to take delivery of and make payment for the Securities, and the
obligation of the Company to cause the Securities to be sold and delivered,
shall not be affected by the failure of any purchaser to take delivery of and
make payment for the Securities pursuant to other contracts similar to this
contract.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Very truly yours,
.............................................
(Name of Purchaser)
By
..........................................
Name:
Title:
..........................................
(Address)
Accepted:
CYTEC INDUSTRIES INC.,
By
.....................
Name:
Title:
