Exhibit 1.1
WESTLAKE CHEMICAL CORPORATION
EQUITY SECURITIES
FORM OF UNDERWRITING AGREEMENT
, 20
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[Names and Addresses of the Underwriters]
Ladies and Gentlemen:
1. Offering. Westlake Chemical Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell to the Underwriters shares
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(the "Firm Securities") of its , par value $ per share (the
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"Securities"), and also proposes to issue and sell to the Underwriters, at the
option of the Underwriters, an aggregate of not more than additional
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shares (the "Optional Securities"), of its Securities as set forth below. The
Firm Securities and the Optional Securities are herein collectively called the
"Offered Securities."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333- ),
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including a form of prospectus, for the registration of the offer and sale of
certain securities, including the Offered Securities under the Securities Act of
1933, as amended (the "1933 Act"), from time to time in accordance with Rule 415
of the rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"). Such registration statement has been declared effective by the
Commission. Promptly after execution and delivery of this Agreement, the Company
will prepare and file a prospectus supplement relating to the Offered
Securities, the terms of the offering thereof and the other matters set forth
therein, pursuant to Rule 424(b) under the 1933 Act Regulations. The final
prospectus and the final prospectus supplement relating to the Offered
Securities, in the forms filed with the Commission pursuant to Rule 424(b) under
the 1933 Act Regulations for use in connection with the offering of the Offered
Securities, are collectively referred to herein as the "Prospectus", and such
registration statement in the form in which it became effective, is hereinafter
called the "Registration Statement"; provided, however, that all references to
the "Registration Statement" and the "Prospectus" shall also be deemed to
include all documents incorporated therein by reference pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), prior to the date
of this Agreement. A "preliminary prospectus" shall be deemed to refer to any
prospectus that omitted information to be included upon pricing in a form of
prospectus filed with the Commission pursuant to Rule 424(b) under the 1933 Act
Regulations and was used after such effectiveness and prior to the initial
delivery of the Prospectus to the Underwriters by the Company. For purposes of
this Agreement, all references to the Registration Statement, any preliminary
prospectus or the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to be identical to the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" (or other
references of like import) in the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be, prior to the date of this Agreement; and all
references in this Agreement to amendments or supplements to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to mean
and include the filing of any document under the 1934 Act which is incorporated
by reference in the Registration Statement, such preliminary prospectus or the
Prospectus, as the case may be, after the date of this Agreement.
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the several Underwriters that:
(a) At the time the Registration Statement became effective, the
Registration Statement complied, and as of each Closing Date (as defined
hereinafter), will comply, in all material respects with
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the requirements of the 1933 Act and the 1933 Act Regulations. The
Registration Statement, at the time it became effective, did not, as of the
date hereof, does not, and at each Closing Date, will not, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading. The Prospectus, as of its date and at each Closing Date
will not contain an 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 representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by the
Underwriters expressly for use in the Registration Statement or Prospectus.
(b) The documents incorporated by reference in the Prospectus, at the
time they were or hereafter are filed with the Commission, complied or,
when so filed, will comply, as the case may be, in all material respects
with the requirements of the 1934 Act and the rules and regulations
thereunder (the "1934 Act Regulations"), and, when read together and with
the other information in the Prospectus, at the time the Registration
Statement became effective, as of the date of the Prospectus and on any
Closing Date, did not and will not, as of such time or dates, as the case
may be, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
or are made, not misleading.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified or in good standing would not, individually or
in the aggregate, have a material adverse effect on the current or future
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole (a
"Material Adverse Effect").
(d) Each subsidiary of the Company has been duly incorporated or
formed and is an existing corporation or other entity in good standing
under the laws of the jurisdiction of its incorporation or organization,
with power and authority (corporate and other organizational) to own its
properties and conduct its business as described in the Prospectus; and
each subsidiary of the Company is duly qualified to do business as a
foreign corporation or other entity in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of
its business requires such qualification, except where the failure to be so
qualified or in good standing would not, individually or in the aggregate,
have a Material Adverse Effect; all of the issued and outstanding capital
stock of each subsidiary of the Company has been duly authorized and
validly issued and is fully paid and nonassessable; and the capital stock
of each subsidiary owned by the Company, directly or through subsidiaries,
is owned free from liens, encumbrances and defects, except to the extent
(i) such capital stock is subject to a lien or encumbrance in connection
with the Indenture dated as of July 31, 2003 by and among the Company, the
guarantors named therein and JPMorgan Chase Bank, as trustee, relating to
the 8 3/4% senior notes due 2011, the Credit Agreement dated as of July 31,
2003 by and among the Company, certain of its subsidiaries, the lenders
party thereto and Bank of America, N.A., as agent, relating to a $200
million senior secured revolving credit facility and the Credit Agreement
dated as of July 31, 2003 by and among the Company, certain of its
subsidiaries, the lenders party thereto and Bank of America, N.A., as
agent, relating to a senior secured term loan (collectively, the "Debt
Agreements") or (ii) that any failure of such capital stock to be free from
liens and encumbrances would not, individually or in the aggregate, have a
Material Adverse Effect.
(e) The Offered Securities and all other outstanding shares of capital
stock of the Company have been duly authorized and validly issued, fully
paid and nonassessable and conform to the description thereof contained in
the Prospectus; and the stockholders of the Company have no preemptive
rights with respect to the Securities.
(f) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that would
give rise to a valid claim against the
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Company or any Underwriter for a brokerage commission, finder's fee or
other like payment in connection with the sale of the Offered Securities.
(g) Except for the Registration Rights Agreement dated August 16, 2004
between the Company and TTWF LP and except as described in the Prospectus,
there are no contracts, agreements or understandings between the Company
and any person granting such person the right to require the Company to
file a registration statement under the 1933 Act with respect to any
securities of the Company owned or to be owned by such person or to require
the Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the 1933 Act that have not been validly waived or satisfied
prior to the date hereof.
(h) [The Offered Securities have been approved for listing, subject to
notice of issuance, on The New York Stock Exchange.]
(i) No consent, approval, authorization, or order of, or filing with,
any governmental agency of the United States or body or any court with
jurisdiction in the United States is required to be obtained or made by the
Company for the consummation of the transactions contemplated by this
Agreement in connection with the sale of the Offered Securities, except
such as have been obtained and made or will be obtained and made prior to
the date hereof under the 1933 Act (provided, however, a filing with the
Commission pursuant to Rule 424(b) may be made after the date hereof so
long as such filing is made within the time period specified in the
applicable provision of such rule ) and such as may be required under state
securities or blue sky laws.
(j) The execution, delivery and performance of this Agreement by the
Company, and the consummation of the transactions herein contemplated will
not conflict with or result in a breach or violation of any of the terms
and provisions of, or constitute a default under, (A) any statute, any
rule, regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Company or any subsidiary
of the Company or any of their properties, or (B) any agreement or
instrument to which the Company or any such subsidiary is a party or by
which the Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject, or (C) the
charter or by-laws or other organizational documents of the Company or any
such subsidiary, other than, in the case of clauses (A) or (B) above, such
conflicts, breaches, violations or defaults that would not, individually or
in the aggregate, have a Material Adverse Effect.
(k) This Agreement has been duly authorized, executed and delivered by
the Company.
(l) Except as disclosed in the Prospectus, the Company and each of its
subsidiaries has (A) good and indefeasible title to (in the case of fee
interests in real property), (B) valid leasehold interests in (in the case
of leasehold interests in real or personal property) and (C) valid title to
(in the case of all other personal property), all of its respective
properties and assets reflected in the Company's consolidated financial
statements included in the Registration Statement and the Prospectus free
and clear of all liens, encumbrances and defects, except for such failures
to have such title to or interests in, and for such liens, encumbrances and
defects, as would not, individually or in the aggregate, have a Material
Adverse Effect.
(m) The Company and its subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or
bodies necessary to conduct the business now operated by them, except as
would not, individually or in the aggregate, have a Material Adverse
Effect, and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate, have a Material Adverse Effect.
(n) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
would reasonably be expected to have a Material Adverse Effect.
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(o) The Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "intellectual property rights")
necessary to conduct the business now operated by them, or presently
employed by them, except as would not, individually or in the aggregate,
have a Material Adverse Effect, and have not received any notice of
infringement of or conflict with asserted rights of others with respect to
any intellectual property rights that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a Material Adverse Effect.
(p) Except as disclosed in the Prospectus, and except for such matters
as would not, individually or in the aggregate, have a Material Adverse
Effect or be required to be disclosed in the Prospectus by the Commission
pursuant to the 1933 Act Regulations, the Company and its subsidiaries (or,
to the knowledge of the Company, any other entity for whose acts or
omissions the Company is or may be liable) (1) are conducting and have
conducted their businesses, operations and facilities in compliance with
Environmental Laws (as defined below); (2) possess and maintain in full
force and effect any and all permits, licenses or registrations required
under Environmental Law for the conduct of their businesses ("Environmental
Permits"); (3) have not, pursuant to any contract, assumed responsibility
to cure any currently identified material liability under Environmental Law
or to remediate any currently identified Hazardous Substances (as defined
below) spill or release; (4) have not received any notice from a
governmental authority or any other third party alleging any violation of
Environmental Law or liability thereunder (including, without limitation,
liability as a "potentially responsible party" and/or for costs of
investigating or remediating sites containing Hazardous Substances and/or
damages to natural resources); (5) are not subject to any pending or, to
the knowledge of the Company, threatened claim or other legal proceeding
under any Environmental Laws against the Company or its subsidiaries; (6)
do not have knowledge of any pending Environmental Law, or any unsatisfied
condition in an Environmental Permit, or any release of Hazardous
Substances that, individually or in the aggregate, can reasonably be
expected to require any material capital expenditures to maintain the
Company's or the subsidiaries' compliance with Environmental Law or with
their Environmental Permits; and (7) does not (A) rely on any third party
for an indemnity for, or the contractual assumption of, any material
remediation obligation or liability under Environmental Law and (B) have
reasonable cause to believe that such third party will default in its
obligation to comply with such indemnity or contractual assumption. As used
in this paragraph, "Environmental Laws" means any and all applicable
federal, state, local, and foreign laws, statutes, ordinances, rules,
regulations, requirements and common law, or any enforceable administrative
or judicial interpretation, order, consent, decree or judgment thereof,
relating to pollution or the protection of human health or the environment,
including, without limitation, those relating to, regulating, or imposing
liability or standards of conduct concerning (i) noise or odor, (ii)
emissions, discharges, releases or threatened releases of Hazardous
Substances into ambient air, surface water, groundwater or land, (iii) the
generation, manufacture, processing, distribution, use, treatment, storage,
disposal, release, transport or handling of, or exposure to, Hazardous
Substances, (iv) the protection of wildlife or endangered or threatened
species, or (v) the investigation, remediation or cleanup of, or exposure
to, any Hazardous Substances. As used in this paragraph, "Hazardous
Substances" means pollutants, contaminants or hazardous, dangerous or toxic
substances, materials, constituents or wastes or petroleum, petroleum
products and their breakdown constituents, or any other chemical substance
regulated under Environmental Laws.
(q) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would individually or
in the aggregate have a Material Adverse Effect, or would materially and
adversely affect the ability of the Company to perform its obligations
under this Agreement, or which are otherwise material in the context of the
sale of the Offered Securities; and no such actions, suits or proceedings
are threatened or, to the Company's knowledge, contemplated.
(r) The financial statements included in the Registration Statement
and the Prospectus present fairly the financial position of the Company and
its consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and such financial
statements have been prepared in conformity with the generally accepted
accounting principles in the United States
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("GAAP") applied on a consistent basis; all non-GAAP financial information
included in the Registration Statement complies with the requirements of
Item 10 of Regulation S-K under the 1933 Act.
(s) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus there has
been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole, and, except as disclosed in or contemplated
by the Prospectus, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(t) As of the date hereof, the Company is subject to the reporting
requirements of either Section 13 of the 1934 Act and files reports with
the Commission on ▇▇▇▇▇.
(u) The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds thereof
as described in the Prospectus, will not be an "investment company" as
defined in the Investment Company Act of 1940.
(v) The Company and its subsidiaries have filed all federal, state and
local income and franchise tax returns required to be filed through the
date hereof, except where the failure to so file such returns would not,
individually or in the aggregate, have a Material Adverse Effect, and have
paid all taxes due thereon, and other than tax deficiencies which the
Company or any of its subsidiaries is contesting in good faith and for
which adequate reserves have been provided in accordance with GAAP, there
is no tax deficiency that has been asserted against the Company or any of
its subsidiaries that would, individually or in the aggregate, have a
Material Adverse Effect.
(w) Prior to the date hereof, neither the Company nor any of its
affiliates has taken any action which is designed to or which has
constituted or which might have been expected to cause or result in
unlawful stabilization or manipulation of the price of any security of the
Company in connection with the offering of the Offered Securities.
(x) PricewaterhouseCoopers LLP who have certified certain financial
statements of the Company and its subsidiaries are an independent
registered public accounting firm as contemplated by the 1933 Act and the
1933 Act Regulations.
(y) The Company and its subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or
specific authorization and (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and to
maintain accountability for assets.
(z) The Company and its subsidiaries maintain disclosure controls and
procedures (as defined in Rule 13a-14 of the 1934 Act Regulations) designed
to ensure that information required to be disclosed by the Company,
including its consolidated subsidiaries, in the reports that it files or
submits under the 1934 Act is recorded, processed, summarized and reported
in accordance with the 1934 Act Regulations. The Company has carried out
evaluations, under the supervision and with the participation of the
Company's management, of the effectiveness of the design and operation of
the Company's disclosure controls and procedures in accordance with Rule
13a-15 of the 1934 Act Regulations.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at a purchase price of $ per share, the number of Firm
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Securities set forth below the caption "Number of Firm Securities to be Sold by
the Company" and opposite the name of such Underwriter in Schedule A hereto.
The Company will deliver the Firm Securities to the Underwriters, against
payment of the purchase price in Federal (same day) funds by official bank check
or checks or wire transfer to an account at a bank acceptable to the
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Underwriters drawn to the order of the Company in the case of the Firm
Securities at the office of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇, at 9:00 A.M., New York time, on , 20 , or at such other
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time not later than seven full business days thereafter as the Underwriters and
the Company determine, such time being herein referred to as the "First Closing
Date". For purposes of Rule 15c6-1 of the 1934 Act Regulations, the First
Closing Date (if later than the otherwise applicable settlement date) shall be
the settlement date for payment of funds and delivery of securities for all the
Offered Securities sold pursuant to the offering. The certificates for the Firm
Securities so to be delivered will be in definitive form, in such denominations
and registered in such names as the Underwriters request and will be made
available for checking and packaging at the above office of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P.
at least 24 hours prior to the First Closing Date.
In addition, upon written notice from the Underwriters given to the Company
not more than 30 days subsequent to the date of the Prospectus, the Underwriters
may purchase all or less than all of the Optional Securities at the purchase
price per Security to be paid for the Firm Securities. The Company agrees to
sell to the Underwriters the number of shares of Optional Securities specified
in such notice and the Underwriters agree, severally and not jointly, to
purchase such Optional Securities. Such Optional Securities shall be purchased
from the Company for the account of each Underwriter in the same proportion as
the number of Firm Securities set forth opposite such Underwriter's name bears
to the total number of Firm Securities in Schedule A hereto (subject to
adjustment by the Underwriters to eliminate fractions) and may be purchased by
the Underwriters only for the purpose of covering over-allotments made in
connection with the sale of the Firm Securities. No Optional Securities shall be
sold or delivered unless the Firm Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised no more than once and to the
extent not previously exercised may be surrendered and terminated at any time
upon notice by the Underwriters to the Company.
The time for the delivery of and payment for the Optional Securities, being
herein referred to as the "Optional Closing Date", which may be the First
Closing Date (the First Closing Date and the Optional Closing Date, if any,
being sometimes referred to as a "Closing Date"), shall be determined by the
Underwriters but shall be not later than five full business days after written
notice of election to purchase Optional Securities is given. On the Optional
Closing Date, the Company will deliver the Optional Securities being purchased
on the Optional Closing Date to the several Underwriters, against payment of the
purchase price therefor in Federal (same day) funds by official bank check or
checks or wire transfer to an account at a bank acceptable to the Underwriters
drawn to the order of the Company, at office of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. The certificates for the Optional
Securities being purchased on the Optional Closing Date will be in definitive
form, in such denominations and registered in such names as the Underwriters
request upon reasonable notice prior to the Optional Closing Date and will be
made available for checking and packaging at the above office of ▇▇▇▇▇ ▇▇▇▇▇
L.L.P. at a reasonable time in advance of the Optional Closing Date.
4. Offering by Underwriters. It is understood that the several Underwriters
propose to offer the Offered Securities for sale to the public as set forth in
the Prospectus.
5. Certain Agreements of the Company. The Company agrees with the several
Underwriters that:
(a) At any time when a prospectus relating to the Offered Securities
is required to be delivered under the 1933 Act, the Company will not file
or make any amendment to the Registration Statement or any supplement to
the Prospectus (except for periodic or current reports filed under the ▇▇▇▇
▇▇▇) unless the Company has furnished the Underwriters a copy for its
review prior to filing and given the Underwriters a reasonable opportunity
to comment on any such proposed amendment or supplement. The Underwriters
shall make its responses thereto, if any, promptly. Immediately following
the execution of this Agreement, the Company will prepare a prospectus
supplement, in form approved by the Underwriters, setting forth the number
of shares of Offered Securities to be sold, the Underwriters' names, the
price at which the Offered Securities are to be purchased by the
Underwriters from the Company, the initial offering price, the selling
concession and reallowance, if any, and such other information as the
Underwriters and the Company deem appropriate in connection with the
offering of the Offered Securities. The Company will promptly cause the
Prospectus to be filed with the Commission pursuant to Rule 424(b) of the
1933 Act Regulations in the manner and within the time period prescribed by
such rule and will provide evidence satisfactory to the Underwriters of
such filing. The Company will promptly advise the
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Underwriters (i) at any time when a prospectus relating to the Offered
Securities is required to be delivered under the 1933 Act, when any
post-effective amendment to the Registration Statement shall have been
filed or become effective, (ii) of any request by the Commission for any
post-effective amendment of the Registration Statement or supplement to the
Prospectus or for any additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening by direct
communication with the Company of any proceeding for that purpose, and (iv)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Offered Securities for sale in any
jurisdiction or the initiation or threatening by direct communication with
the Company of any proceeding for such purpose. The Company will promptly
effect the filing of the Prospectus necessary pursuant to Rule 424(b) of
the 1933 Act Regulations and will take such steps as it deems necessary to
ascertain promptly whether the Prospectus transmitted for filing under Rule
424(b) was received for filing by the Commission and, in the event that it
was not, it will promptly file the Prospectus. The Company will use its
reasonable best efforts to prevent the issuance of any stop order
suspending the effectiveness of the Registration Statement and, if issued,
to obtain as soon as possible the withdrawal thereof.
(b) If at any time when a prospectus relating to the Offered
Securities is required to be delivered under the 1933 Act, any event occurs
as a result of which the Prospectus would include any untrue statement of a
material fact or omit to state a 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 to amend the Registration
Statement or to supplement the Prospectus to comply with the 1933 Act or
the 1934 Act, or the 1933 Act Regulations or the 1934 Act Regulations, the
Company promptly will (i) notify the Underwriters, (ii) prepare and file
with the Commission, subject to the first sentence of paragraph (a) of this
Section 5, an amendment or supplement which will correct such statement or
omission or effect such compliance, and (iii) supply any supplemented
Prospectus to the Underwriters in such quantities as the Underwriters may
reasonably request.
(c) During the period when a prospectus relating to the Offered
Securities is required to be delivered under the 1933 Act, (i) the Company
will file promptly all documents required to be filed with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act and will
furnish to the Underwriters copies of such documents, (ii) on or prior to
the date on which the Company makes any announcement to the general public
concerning earnings or concerning any other event which is required to be
described, or which the Company proposes to describe, in a document filed
pursuant to the 1934 Act, the Company will furnish to the Underwriters the
information contained or to be contained in such announcement or document
and (iii) the Company will furnish to the Underwriters copies of all other
material press releases or announcements to the general public.
(d) As soon as practicable, but not later than 90 days after the close
of the period covered by the earnings statement, the Company will make
generally available to its security holders and to the Underwriters an
earnings statement or statements of the Company and its subsidiaries which
will satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158
of the 1933 Act Regulations.
(e) So long as the Underwriters are required to deliver a prospectus
in connection with sales of the Offered Securities, the Company will
furnish to the Underwriters and their counsel, without charge, such copies
of the Registration Statement (including exhibits thereto) and Prospectus
as the Underwriters may reasonably request.
(f) The Company will use its reasonable best efforts to arrange for
the qualification of the Offered Securities for sale under the laws of such
jurisdictions as the Underwriters reasonably request and will continue such
qualifications in effect so long as required for the distribution of the
Offered Securities, provided that the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction.
(g) For a period of 60 days after the First Closing Date, the Company
will not offer, sell, contract to sell, pledge or otherwise dispose of,
directly or indirectly, or file with the Commission a registration
statement under the 1933 Act (other than a registration statement on Form
S-8) relating to, any
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additional shares of the Securities or securities convertible into or
exchangeable or exercisable for any shares of the Securities, or publicly
disclose the intention to make any such offer, sale, pledge, disposition or
filing, without the prior written consent of the Underwriters, except
grants of stock options, restricted stock or other stock-based awards
pursuant to the terms of the Company's 2004 Omnibus Incentive Plan or any
similar plan, issuances of Securities pursuant to the exercise of such
awards or the exercise of any other awards outstanding on the date hereof
or issuances of Securities pursuant to the Company's dividend reinvestment
plan.
(h) The Company agrees with the several Underwriters that the Company
will pay all expenses incident to the performance of the obligations of the
Company under this Agreement (including, without limitation, fees of the
Company's counsel, accounting fees and fees related to the listing of the
Offered Securities on the New York Stock Exchange), for any filing fees and
other expenses (including fees and disbursements of counsel) in connection
with qualification of the Offered Securities for sale under the laws of
such jurisdictions as the Underwriters designate and the printing of
memoranda relating thereto, for any travel expenses of the Company's
officers and employees and any other expenses of the Company in connection
with attending or hosting meetings with prospective purchasers of the
Offered Securities and for expenses incurred in distributing preliminary
prospectuses and the Prospectus (including any amendments and supplements
thereto) to the Underwriters.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on the Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the statements
of Company officers made pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions precedent:
(a) The Underwriters shall have received a letter, dated the date
hereof, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to
the financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(b) The Prospectus shall have been filed with the Commission in
accordance with the 1933 Act Regulations and Section 5(a) of this
Agreement. Prior to such 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, to the
knowledge of Company or the Underwriters, shall be contemplated by the
Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole which, in the reasonable judgment of a
majority in interest of the Underwriters, is material and adverse and makes
it impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities; (ii) any
downgrading in the rating of any debt securities of the Company by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) of the 1933 Act Regulations), or any public
announcement that any such organization has under surveillance or review
its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any change in
U.S. or international financial, political or economic conditions or
currency exchange rates or exchange controls as would, in the reasonable
judgment of a majority in interest of the Underwriters, be likely to
prejudice materially the success of the proposed issue, sale or
distribution of the Offered Securities, whether in the primary market or in
respect of dealings in the secondary market; (iv) any material suspension
or material limitation of trading in securities generally on the New York
Stock Exchange, or any setting of minimum prices for trading on such
exchange; (v) any suspension of trading of any securities of the Company on
any exchange or in the over-the-counter market; (vi) any banking moratorium
declared by U.S. Federal or New York authorities; (vii) any major
disruption of settlements of securities or clearance services in the United
States or (viii) any attack on, outbreak or escalation of hostilities or
act of terrorism involving the United States, any declaration of war by
Congress or any other
8
national or international calamity or emergency if, in the reasonable
judgment of a majority in interest of the Underwriters, the effect of any
such attack, outbreak, escalation, act, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of, delivery and payment for the Offered
Securities.
(d) The Underwriters shall have received an opinion, dated such
Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Company, to the effect
that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus;
(ii) The Offered Securities delivered on such Closing Date and
all other outstanding shares of the Common Stock of the Company have
been duly authorized and validly issued and are fully paid and
nonassessable; and the stockholders of the Company have no preemptive
rights under the charters or bylaws of the Company, the Delaware
General Corporation Law or, to the best of the knowledge of such
counsel, any other agreement or instrument to which the Company is a
party, with respect to the Securities;
(iii) Except as described in the Prospectus, there are no
contracts, agreements or understandings known to such counsel between
the Company and any person granting such person the right to require
the Company to file a registration statement under the 1933 Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the 1933 Act that have not been
validly waived or satisfied prior to the date hereof;
(iv) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement in connection with the
sale of the Offered Securities, except such as have been obtained and
made under the 1933 Act, such consents, approvals or filings as may be
required by or with the NASD (as to which such counsel need express no
opinion) and such as may be required under state securities or blue
sky laws (as to which such counsel need express no opinion);
(v) The execution, delivery and performance of this Agreement and
the sale of the Offered Securities will not conflict with or result in
a breach or violation of any of the terms and provisions of, or
constitute a default under, (A) any statute, rule or regulation of, or
order of any governmental agency or body or any court having
jurisdiction in, the United States, the State of Texas or the State of
New York, and the Delaware General Corporation Law (provided, however,
that such counsel need express no opinion with respect to compliance
with any state securities or antifraud law, rule or regulation), (B)
any agreement or instrument listed as an exhibit to the most recently
filed Annual Report on Form 10-K of the Company (the "Material
Agreements"), or (C) the charter or by-laws of the Company, other
than, in the case of clauses (A) or (B) above, such conflicts,
breaches, violations or defaults that would not, individually or in
the aggregate, have a Material Adverse Effect;
(vi) This Agreement has been duly authorized, executed and
delivered by the Company;
(vii) The statements contained in the Prospectus under the
caption "Description of Capital Stock" insofar as they purport to
constitute a summary of the Securities, accurately summarize in all
material respects the terms of the Securities;
9
(viii) The Registration Statement was declared effective under
the 1933 Act as of the date and time specified in such opinion; the
Prospectus was filed with the Commission pursuant to the subparagraph
of Rule 424(b) specified in such opinion, and, to the best of the
knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement or any part thereof has been issued and
no proceedings for that purpose have been instituted or are pending or
contemplated under the 1933 Act, and the Registration Statement and
the Prospectus (other than the financial statements and schedules,
including the notes thereto, the auditors' reports thereon,
management's report on internal control over financial reporting, if
any, and the other financial, numerical and accounting information
included therein, or omitted therefrom, as to which such counsel need
express no opinion), and each amendment or supplement thereto, as of
their respective effective or issue dates, complied as to form in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations; and
(ix) The documents incorporated by reference in the Prospectus
(other than the financial statements and schedules, including the
notes thereto, the auditors' reports thereon, management's report on
internal control over financial reporting, if any, and the other
financial, numerical and accounting information included therein, or
omitted therefrom, as to which such counsel need express no opinion),
at the time they were filed with the Commission, appear on their faces
to comply as to form in all material respects with the requirements of
the 1934 Act and the 1934 Act Regulations.
Such counsel shall also include, in a separate paragraph of its
opinion, statements to the following effect: such counsel has
participated in conferences with officers and other representatives of
the Company, with representatives of the independent accountants of
the Company, with representatives of and counsel for the Underwriters,
at which the contents of the Registration Statement and the Prospectus
were discussed, and although such counsel did not independently verify
such information, and is not passing upon and does not assume any
responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or Prospectus
(except to the extent set forth in paragraph (vii) above), on the
basis of the foregoing (relying as to materiality to a large extent
upon officers and other representatives of the Company and
representatives of the Underwriters), no facts have come to such
counsel's attention that lead such counsel to believe that (A) the
Registration Statement (other than the financial statements and
schedules, including the notes thereto, the auditors' reports thereon,
management's report on internal control over financial reporting, if
any, and the other financial, numerical and accounting information
included therein or omitted therefrom, as to which such counsel has
not been asked to comment) as of its effective date or as of such
Closing Date included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein not misleading, and (B) the Prospectus or any
amendments thereto (other than the financial statements and schedules,
including the notes thereto, the auditors' reports thereon,
management's report on internal control over financial reporting, if
any, and the other financial, numerical and accounting information
included therein or omitted therefrom, as to which such counsel has
not been asked to comment) as of its effective date or as of such
Closing Date included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made not misleading.
(e) The Underwriters shall have received an opinion, dated such
Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President and General Counsel of the
Company, to the effect that:
(i) The Company is duly qualified to do business as a foreign
corporation in good standing in all jurisdictions in which its
ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to be so qualified or in
good standing would not, individually or in the aggregate, have a
Material Adverse Effect;
(ii) Each subsidiary of the Company listed on Exhibit A hereto
has been duly incorporated or formed and is an existing corporation or
other entity in good standing under the
10
laws of the jurisdiction of its incorporation, with power and
authority (corporate and other organizational) to own its properties
and conduct its business as described in the Prospectus; and each
subsidiary listed on Exhibit A hereto is duly qualified to do business
as a foreign corporation or other entity in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified or in good standing would not, individually
or in the aggregate, have a Material Adverse Effect; all of the issued
and outstanding capital stock or limited partnership interests, as
applicable, of each subsidiary of the Company has been duly authorized
and validly issued and is fully paid and nonassessable; and the
capital stock or limited partnership interests, as applicable, of each
subsidiary owned by the Company, directly or through subsidiaries, is
owned free from liens and encumbrances, except to the extent that (i)
such capital stock or limited partnership interest is subject to a
lien or encumbrance in connection with the Debt Agreements or (ii) any
failure of such capital stock or limited partnership interests to be
free from liens and encumbrances would not, individually or in the
aggregate, have a Material Adverse Effect; and
(iii) The execution, delivery and performance of this Agreement
will not result in (A) a breach or violation of any of the terms and
provisions of, or constitute a default under, the charter or by-laws
or other organizational documents of any subsidiary of the Company, or
(B) any agreement or instrument to which the Company or any subsidiary
is a party or by which the Company or any such subsidiary is bound or
to which any of the properties of the Company or any such subsidiary
is subject (excluding the Material Agreements, as to which such
counsel need express no opinion), other than, in the case of clause
(B) above, such conflicts, breaches, violations or defaults that would
not, individually or in the aggregate, have a Material Adverse Effect.
Such counsel shall also include, in a separate paragraph of its
opinion, statements to the following effect: such counsel has participated
in conferences with officers and other representatives of the Company, with
representatives of the independent accountants of the Company, with
representatives of and counsel for the Underwriters, at which the contents
of the Registration Statement and the Prospectus were discussed, and
although such counsel did not independently verify such information, and is
not passing upon and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or Prospectus or any amendment thereto, on the basis of the
foregoing (relying as to materiality to a large extent upon officers and
other representatives of the Company and representatives of the
Underwriters), no facts have come to such counsel's attention that lead
such counsel to believe that (A) the Registration Statement (other than the
financial statements and schedules, including the notes thereto, the
auditors' reports thereon, management's report on internal control over
financial reporting, if any, and the other financial, numerical and
accounting information included therein or omitted therefrom, as to which
such counsel has not been asked to comment) as of its effective date or as
of such Closing Date included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein not misleading, and (B) the Prospectus or any amendment thereto
(other than the financial statements and schedules, including the notes
thereto, the auditors' reports thereon, management's report on internal
control over financial reporting, if any, and the other financial,
numerical and accounting information included therein or omitted therefrom,
as to which such counsel has not been asked to comment) as of its effective
date or as of such Closing Date included 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.
(f) The Underwriters shall have received from ,
------------------
counsel for the Underwriters, such opinion or opinions, dated such Closing
Date, with respect to the incorporation of the Company, the validity of the
Offered Securities delivered on such Closing Date, the Registration
Statements, the Prospectus and other related matters as the Underwriters
may 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.
(g) The Underwriters shall have received a certificate, dated such
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which
11
such officers, to the best of their knowledge after reasonable
investigation, shall state that: the representations and warranties of the
Company in this Agreement are true and correct; the Company has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to such Closing Date; no stop
order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission; and, subsequent to the date of the most
recent financial statements in the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries,
taken as a whole, except as set forth in the Prospectus or as described in
such certificate.
(h) The Underwriters shall have received a letter, dated such Closing
Date, of PricewaterhouseCoopers LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred to
in such subsection will be a date not more than three days prior to such
Closing Date for the purposes of this subsection.
(i) [On or prior to the date of this Agreement, the Underwriters shall
have received lockup letters from TTWF LP and each of the executive
officers and directors of the Company who own any Securities].
The Company will furnish the Underwriters with such conformed copies of such
opinions, certificates, letters and documents as the Underwriters reasonably
request. The Underwriters may in their discretion waive compliance with any
conditions to the obligations of the Underwriters hereunder, whether in respect
of the Optional Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, members, directors and officers
and each person, if any who controls such Underwriter within the meaning of
Section 15 of the 1933 Act, against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject, under the 1933
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter specifically for use
therein, it being understood and agreed that the only such information furnished
by any Underwriter consists of the information described as such in subsection
(b) below; and provided, further, that with respect to any untrue statement or
alleged untrue statement in or omission or alleged omission from any preliminary
prospectus the indemnity agreement contained in this subsection (a) shall not
inure to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased the Offered Securities
concerned, to the extent that a prospectus relating to such Offered Securities
was required to be delivered by such Underwriter under the 1933 Act in
connection with such purchase and any such loss, claim, damage or liability of
such Underwriter results from the fact that there was not sent or given to such
person, at or prior to the written confirmation of the sale of such Offered
Securities to such person, a copy of the Prospectus if the Company had
previously furnished copies thereof to such Underwriter.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act,
against any losses, claims, damages or liabilities to which the Company may
become subject, under the 1933 Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related preliminary prospectus,
or arise out of or are based upon the omission or
12
the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any Underwriter consists
of the following information in the Prospectus furnished on behalf of each
Underwriter: [list applicable sentences and paragraphs].
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against an indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the failure to notify the indemnifying party
shall not relieve it from any liability that it may have under subsection
(a) or (b) above except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or defenses) by
such failure; and provided further that the failure to notify the
indemnifying party shall not relieve it from any liability that it may have
to an indemnified party otherwise than under subsection (a) or (b) above,
except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights and defenses) by such failure. In case any
such action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof
other than reasonable costs of investigation. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party unless such settlement (i)
includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action and (ii)
does not include a statement as to, or an admission of, fault, culpability
or a failure to act by or on behalf of an indemnified party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a)
or (b) above, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other
from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company
on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result
of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of
this subsection (d). Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Offered
13
Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇)
shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the 1933 Act; and the
obligations of the Underwriters under this Section shall be in addition to
any liability which the respective Underwriters may otherwise have and
shall extend, upon the same terms and conditions, to each director of the
Company, to each officer of the Company who has signed the Registration
Statement and to each person, if any, who controls the Company within the
meaning of the 1933 Act.
8. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities hereunder on either the First
Closing Date or the Optional Closing Date and the aggregate number of shares of
Offered Securities that such defaulting Underwriter or Underwriters agreed but
failed to purchase does not exceed 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date,
the Underwriters may make arrangements satisfactory to the Company for the
purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered Securities that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
the Underwriters and the Company for the purchase of such Offered Securities by
other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter
or the Company, except as provided in Section 9 (provided that if such default
occurs with respect to Optional Securities after the First Closing Date, this
Agreement will not terminate as to the Firm Securities purchased prior to such
termination). As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If this Agreement is terminated pursuant
to Section 8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company and the Underwriters pursuant to Section 7 shall
remain in effect, and if any Offered Securities have been purchased hereunder,
the representations and warranties in Section 2 and all obligations under
Section 5 shall also remain in effect. If the purchase of the Offered Securities
by the Underwriters is not consummated for any reason other than solely because
of the termination of this Agreement pursuant to Section 8 or the occurrence of
any event specified in clause (iii), (iv), (vi), (vii) or (viii) of Section
6(c), the Company will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or faxed and confirmed to the
Underwriters, c/o , , ,
---------------- -------------------- -------------------
Attention: (fax: ( ) - ), or, if sent to the
-------------------- -- ---- ---
Company, will be mailed, delivered or faxed and confirmed to it at ▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel (fax (713)
▇▇▇-▇▇▇▇); provided, however, that any notice to an Underwriter pursuant to
Section 7 will be mailed, delivered or faxed and confirmed to such Underwriter.
14
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to principles
of conflicts of laws.
15
If the foregoing is in accordance with the Underwriters' understanding of
our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company and the
several Underwriters in accordance with its terms.
Very truly yours,
WESTLAKE CHEMICAL CORPORATION
By
------------------------------------
Name:
Title:
16
The foregoing Underwriting Agreement is hereby confirmed and accepted as of
the date first above written.
By [NAME OF UNDERWRITERS]
By
------------------------------
Name:
Title:
17
SCHEDULE A
Number of Firm Securities
Underwriter to Be Sold By the Company
----------- -------------------------
Total.................................
=====
EXHIBIT A
Material Subsidiaries
North American Bristol Corporation
North American Pipe Corporation
Westlake Styrene ▇▇
▇▇▇▇▇▇▇▇ Polymers LP
WPT LP
Westech Building Products, Inc.
Westlake Petrochemicals ▇▇
▇▇▇▇▇▇▇▇ PVC Corporation
Westlake Vinyls, Inc.
EXHIBIT B
Form of Lockup Letter
, 20
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Westlake Chemical Corporation
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[Name and Address of the Underwriters]
Dear Sirs:
As an inducement to the Underwriters to execute the Underwriting
Agreement, pursuant to which an offering will be made of [common] [preferred]
stock (the "Securities") of Westlake Chemical Corporation, a Delaware
corporation, and any successor (by merger or otherwise) thereto (the "Company"),
the undersigned hereby agrees that from the date hereof and until 60 days after
the public offering date set forth on the final prospectus used to sell the
Securities (the "Public Offering Date") pursuant to the Underwriting Agreement,
to which you are or expect to become parties, the undersigned will not offer,
sell, contract to sell, pledge or otherwise dispose of, directly or indirectly,
any Securities or securities convertible into or exchangeable or exercisable for
any Securities, enter into a transaction which would have the same effect, or
enter into any swap, hedge or other arrangement that transfers, in whole or in
part, any of the economic consequences of ownership of the Securities, whether
any such aforementioned transaction is to be settled by delivery of the
Securities or such other securities, in cash or otherwise, or publicly disclose
the intention to make any such offer, sale, pledge or disposition, or to enter
into any such transaction, swap, hedge or other arrangement, without, in each
case, the prior written consent the Underwriters. In addition, the undersigned
agrees that, without the prior written consent of the Underwriters, it will not,
during the period commencing on the date hereof and ending 60 days after the
Public Offering Date, make any demand for or exercise any right with respect to,
the registration of any Securities or any security convertible into or
exercisable or exchangeable for the Securities.
Any Securities received upon exercise of options granted to the
undersigned will also be subject to this Agreement. Any Securities acquired by
the undersigned in the open market will not be subject to this Agreement. A
transfer of Securities to a family member or trust may be made, provided the
transferee agrees to be bound in writing by the terms of this Agreement prior to
such transfer and such transfer shall not involve a disposition for value.
In furtherance of the foregoing, the Company and its transfer agent
and registrar are hereby authorized to decline to make any transfer of shares of
Securities if such transfer would constitute a violation or breach of this
Agreement.
This Agreement shall be binding on the undersigned and the successors,
heirs, personal representatives and assigns of the undersigned. This Agreement
shall lapse and become null and void if (i) the Public Offering Date shall not
have occurred on or before , , (ii) the Underwriting Agreement is
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terminated in accordance with its terms or (iii) prior to the execution and
delivery of the Underwriting Agreement, the Company notifies you in writing that
it has abandoned the offering of the Securities.
Very truly yours,
