Exhibit 1.4
FMC CORPORATION
3,250,000 Shares/1/
Common Stock
($.10 par value)
Underwriting Agreement
New York, New York
June 5, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
FMC Corporation, a Delaware corporation (the "Company"), proposes to issue
and sell to the several Underwriters named in Schedule I hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, 3,250,000 shares of its Common Stock, $.10 par value per share
(the "Underwritten Shares"). The Company also proposes to grant to the
Underwriters an option to purchase up to 487,500 additional shares of Common
Stock to cover over-allotments (the "Option Shares"; the Option Shares, together
with the Underwritten Shares, being hereinafter called the "Shares"). The shares
of Common Stock, $.10 par value per share, of the Company to be outstanding
after giving effect to the sales contemplated hereby are hereinafter referred to
as the Common Stock. If there shall be only one person, firm or corporation
named as an addressee above, the term "Representatives" as used herein shall
mean that person, firm or corporation. If there shall be only one person, firm
or corporation named in Schedule I hereto, the term "Underwriters" as used
herein shall mean that person, firm or corporation.
The Company meets the requirements for use of Form S-3 under the Securities
Act of 1933, as amended (the "Securities Act") and has filed with the Securities
and Exchange Commission (the "Commission") a registration statement on Form S-3
(No. 333-59543), which has become effective, for the registration under the
Securities Act, of certain equity and other securities (the "Shelf Securities")
to be issued from time to time by the Company. The Company proposes to file with
the Commission pursuant to Rule 424 under the Securities Act a prospectus
supplement specifically relating to the Shares and the plan of distribution
thereof and has previously advised you of all further information with respect
to the Company to be set forth therein. The registration statement, including
the prospectus contained therein and the exhibits thereto, as amended at the
date of this Agreement, is hereinafter referred to as the Registration Statement
and the related prospectus covering the Shelf Securities is hereinafter referred
to as the Basic Prospectus. Any preliminary form of the prospectus filed with
the Commission pursuant to
----------
/1/ Plus an option to purchase from the Company up to 487,500 additional Shares
to cover over-allotments.
Rule 424 shall be referred to as a preliminary prospectus. The Basic Prospectus
as supplemented by the prospectus supplement specifically relating to the
Shares, including any preliminary prospectus, is hereinafter called the
Prospectus. All references to the Registration Statement, the Basic Prospectus,
a preliminary prospectus and the Prospectus include the documents incorporated
therein by reference.
1. Representations and Warranties. The Company represents and warrants to
each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and, to
the knowledge of the Company, no proceedings for such purpose are pending before
or threatened by the Commission.
(b) Each document filed or to be filed pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and incorporated by reference in
the Prospectus complied or will comply when so filed in all material respects
with the Exchange Act, and the rules and regulations thereunder, and, when read
together and with the other information in the Prospectus, on the date of the
Prospectus and on the Closing Date (as defined below) and on any date on which
Option Shares are purchased, if such date is not the Closing Date (each a
"settlement date"), did not and will not include an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were or are made, not misleading; (ii) the
Registration Statement complied on the date it became effective (the "Effective
Date") in all material respects with the Securities Act and the rules and
regulations of the Commission thereunder, (iii) each preliminary prospectus
filed pursuant to Rule 424 under the Securities Act, complied when so filed in
all material respects with the Securities Act and the rules and regulations of
the Commission thereunder, (iv) the Prospectus (and any supplement thereto), as
of its date and as of the Closing Date and on any settlement date, will comply
in all material respects with the Securities Act and the rules and regulations
of the Commission thereunder; (v) on the Effective Date and at the date and time
of execution and delivery of this Agreement (the "Execution Time"), 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, and (vi) as
of its date and as of the Closing Date and any settlement date, the Prospectus
(together with any supplement thereto) will not contain 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; except that the foregoing representations and warranties
shall not apply to (A) that part of the Registration Statement that constitutes
the Statement of Eligibility (Form T-1) under the Trust Indenture Act of 1939 of
the trustee under the Indenture, and (B) statements or omissions in the
Registration Statement, the Basic Prospectus or the Prospectus based upon
information furnished to the Company in writing by any Underwriter through you
expressly for use therein.
(c) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
2
(d) The shares of Common Stock outstanding prior to the issuance of the
Shares have been duly authorized and are validly issued, fully paid and
non-assessable.
(e) The Shares have been duly authorized and, when issued and delivered in
accordance with the terms of this Agreement, will be validly issued, fully paid
and non-assessable, and the issuance of such Shares will not be subject to any
preemptive or similar rights. The certificates for the Shares are in valid and
sufficient form.
(f) The Company is validly existing as a corporation in good standing under
the laws of Delaware and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or the
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
reasonably be expected to have a material adverse effect on the condition
(financial or otherwise), earnings, business or properties of the Company and
its subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto) (a "Material Adverse Effect"),
and has all corporate power and authority under its certificate of
incorporation, bylaws and the laws of the State of Delaware to own, lease and
operate its properties and conduct its business as described in the Prospectus.
(g) Each significant subsidiary of the Company (as defined in Regulation
S-X promulgated by the Commission) (individually a "Subsidiary" and collectively
the "Subsidiaries") of the Company is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or the ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a Material Adverse Effect.
(h) The outstanding shares of capital stock of each Subsidiary have been
duly and validly authorized and issued and are fully paid and non-assessable
and, except as disclosed in the Prospectus (exclusive of any supplement
thereto), are owned by the Company or a wholly-owned subsidiary of the Company
to the extent described therein free and clear of all liens and encumbrances and
any other adverse claims (other than directors' qualifying shares);
(i) This Agreement has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding obligation of the Company.
(j) The Company is not and, after giving effect to the offering and sale of
the Shares and the application of the proceeds thereof as described in the
Prospectus, will not be, an "investment company" or any entity "controlled" by
an "investment company," as such terms are defined in the Investment Company Act
of 1940, as amended.
(k) No authorization, consent, approval or order of any court or
governmental agency or body in the United States or any state or political
subdivision thereof is required for the issuance, sale or performance of the
Company's obligations with respect to the Shares, in the manner contemplated by
this Agreement, except such as are specified and have been obtained
3
and such as may be required by the securities or blue sky laws of the various
states in connection with the purchase and distribution of the Shares by the
Underwriters.
(l) Neither the issue and sale of the Shares nor the consummation of any
other of the transactions herein contemplated nor the fulfillment of the terms
hereof will conflict with, result in a breach or violation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any of
the Subsidiaries pursuant to, (i) the organizational documents of the Company or
any of the Subsidiaries, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which the Company or any of the
Subsidiaries is a party or bound or to which its or their property is subject,
or (iii) any statute, law, rule, regulation, judgment, order or decree
applicable to the Company or any of the Subsidiaries of any court, regulatory
body, administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or any of the subsidiaries or any of its or
their properties; except in the case of (ii) and (iii) above for any such
conflicts, breaches or violations that, individually or in the aggregate, would
not reasonably be expected to have a Material Adverse Effect or have the effect
of preventing the Company from performing any of its obligations under this
Agreement.
(m) No holders of securities of the Company have rights to the registration
of such securities under the Registration Statement.
(n) The consolidated financial statements of the Company and its
consolidated subsidiaries included or incorporated by reference in the
Prospectus, together with the notes thereto, present fairly in all material
respects the financial condition, results of operations and cash flows of the
Company and its consolidated subsidiaries as of the dates and for the periods
indicated, comply as to form with the applicable accounting requirements of the
Securities Act and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved (except as otherwise noted therein). The selected financial data set
forth under the caption "Selected Consolidated Financial Data" in the Prospectus
fairly present, on the basis stated in the Prospectus, the information included
therein.
(o) KPMG LLP, who have certified certain financial statements included or
incorporated by reference in the Prospectus, are independent public accountants
with respect to the Company as required by the Securities Act and the applicable
published rules and regulations thereunder.
(p) There is no action, suit or proceeding pending or threatened against or
affecting the Company or any of its subsidiaries or any of its or their
properties before or by any court, governmental official, commission, board of
other administrative agency or arbitrator that (i) could reasonably be expected
to have a material adverse effect on the performance of this Agreement or the
consummation of any of the transactions contemplated hereby or (ii) has a
reasonable probability (taking into account the exhaustion of all appeals) of
having, individually or in the aggregate, a Material Adverse Effect, except as
disclosed in the Prospectus (exclusive of any supplement thereto), or that in
any manner questions the validity of this Agreement or the Shares.
4
(q) Neither the Company nor any subsidiary is in violation or default of
(i) any provision of its organizational documents, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument to
which it is a party or bound or to which its property is subject, or (iii) any
statute, law, rule, regulation, judgment, order or decree of any court,
regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or such subsidiary or any of its
properties, as applicable, except in the case of (ii) and (iii) above for any
such violations or defaults which would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(r) No labor problem or dispute with the employees of the Company or any of
its subsidiaries exists or is threatened or imminent, and the Company is not
aware of any existing or imminent labor disturbance by the employees of any of
its or its subsidiaries' principal suppliers, contractors or customers, that
would reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
(s) No subsidiary of the Company, other than FMC Wyoming Corporation, is
currently prohibited, directly or indirectly, from paying any dividends to the
Company, from making any other distribution on such subsidiary's capital stock,
from repaying to the Company any loans or advances to such subsidiary from the
Company or from transferring any of such subsidiary's property or assets to the
Company or to any other subsidiary of the Company.
(t) The Company and its subsidiaries possess all licenses, certificates,
permits and other authorizations issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct their respective businesses,
and neither the Company nor any such subsidiary has received any notice of
proceedings relating to the revocation or modification of any such certificate,
authorization or permit which, individually or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would reasonably be expected to
have a Material Adverse Effect.
(u) The Company and its subsidiaries are (i) in compliance with any and all
applicable foreign, federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws"), (ii)
have received and are in compliance with all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) have not received notice of any actual or
potential liability for the investigation or remediation of any disposal or
release of hazardous or toxic substances or wastes, pollutants or contaminants,
except where such non-compliance with Environmental Laws, failure to receive
required permits, licenses or other approvals, or liability would not have,
individually or in the aggregate, a Material Adverse Effect, except as set forth
in or contemplated in the Prospectus (exclusive of any supplement thereto).
(v) In the ordinary course of business, the Company periodically reviews
the effect of Environmental Laws on the business, operations and properties of
the Company and its subsidiaries, in the course of which it identifies and
evaluates associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for cleanup, closure of properties or
compliance with Environmental Laws, or any permit, license or approval, any
5
related constraints on operating activities and any potential liabilities to
third parties). On the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities would not have,
individually or in the aggregate, a Material Adverse Effect, except as set forth
in or contemplated in the Prospectus (exclusive of any supplement thereto).
(w) Other than as would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect on the Company (i) the Company and
its subsidiaries own or have the right to use pursuant to license, sublicense,
agreement, or permission all patents, patent applications, trademarks, service
marks, trade names, copyrights, trade secrets, confidential information,
proprietary rights and processes ("Intellectual Property") necessary for the
operation of the business of the Company and its subsidiaries as described in
the Prospectus and have taken all steps reasonably necessary to secure
assignments of such Intellectual Property from their respective employees and
contractors; (ii) to the Company's knowledge, none of the technology employed by
the Company or its subsidiaries has been obtained or is being used by the
Company or its subsidiaries in violation of any contractual or fiduciary
obligation binding on the Company, its subsidiaries, or any of their respective
directors or executive officers or any of their respective employees or
consultants; and (iii) the Company and its subsidiaries have taken and will
maintain reasonable measures to prevent the unauthorized dissemination or
publication of their own confidential information. Neither the Company, nor any
of its subsidiaries has interfered with, infringed upon, misappropriated, or
otherwise come into conflict with any Intellectual Property rights of third
parties, and the Company and its subsidiaries have not received any charge,
complaint, claim, demand, or notice alleging any such interference,
infringement, misappropriation, or violation (including any claim that the
Company or any of its subsidiaries must license or refrain from using any
intellectual property rights of any third party) which, if the subject of any
unfavorable decision, ruling or finding would, individually or in the aggregate,
have a Material Adverse Effect.
(x) Since the date of the most recent financial statements included or
incorporated by reference in the Prospectus (exclusive of any supplement
thereto), there has been no material adverse change in the condition (financial
or otherwise), earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto).
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Shares shall be deemed a representation and warranty by the Company, as
to matters covered thereby, to each Underwriter.
2. Purchase and Sale. (a) The Company hereby agrees to sell to the several
Underwriters, and the Underwriters, in reliance upon the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
agree, severally and not jointly, to purchase from the Company the respective
numbers of Shares set forth in Schedule I hereto opposite their names at $31.25
per share (the "purchase price").
6
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
487,500 Option Shares at the same purchase price per share as the Underwriters
shall pay for the Underwritten Shares. Said option may be exercised only to
cover over-allotments in the sale of the Underwritten Shares by the
Underwriters. Said option may be exercised in whole or in part at any time (but
not more than once) on or before the 30th day after the date of the Prospectus
upon written or telegraphic notice by the Representatives to the Company setting
forth the number of shares of the Option Shares as to which the several
Underwriters are exercising the option and the settlement date (the "Option
Closing Date"). The number of Option Shares to be purchased by each Underwriter
shall be the same percentage of the total number of shares of the Option Shares
to be purchased by the several Underwriters as such Underwriter is purchasing of
the Underwritten Shares, subject to such adjustments as you in your absolute
discretion shall make to eliminate any fractional shares.
(c) The Company hereby agrees that, without your prior written
consent, it will not offer, sell, contract to sell, pledge or otherwise dispose
of, directly or indirectly, including the filing (or participation in the
filing) of a registration statement with the Commission in respect of, any
shares of Common Stock or any securities convertible into, or exercisable or
exchangeable for, such Common Stock, or publicly announce an intention to effect
any such transaction, for a period of 90 days after the date of the Prospectus,
other than (i) the Shares to be sold hereunder and (ii) issuances of shares of
Common Stock sold by the Company upon the exercise of any outstanding options or
pursuant to existing stock option and incentive plans.
3. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
4. Delivery and Payment. Delivery of and payment for the Underwritten
Shares and the Option Shares (if the option provided for in Section 2(b) hereof
shall have been exercised on or before the third Business Day prior to the
Closing Date) shall be made at 10:00 AM, New York City time, on June 12, 2002,
or at such time on such later date not more than three Business Days after the
foregoing date as the Representatives shall designate, which date and time may
be postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Shares being herein called the "Closing Date"). Delivery of the Shares 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 wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Underwritten Shares and the Option Shares shall be
made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after the
third Business Day prior to the Closing Date, the Company will deliver the
Option Shares (at the expense of the Company) to the Representatives, at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ the date specified by the
Representatives (which shall be within three Business Days after exercise of
said option) 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
7
the Company by wire transfer payable in same-day funds to an account specified
by the Company. If settlement for the Option Shares occurs after the Closing
Date, the Company will deliver to the Representatives on the settlement date for
the Option Shares, and the obligation of the Underwriters to purchase the Option
Shares shall be conditioned upon receipt of, supplemental opinions, certificates
and letters confirming as of such date the opinions, certificates and letters
delivered on the Closing Date pursuant to Section 5 hereof
5. Conditions to the Obligations of the Underwriters. The several
obligations of the Underwriters hereunder shall be subject to the accuracy of
the representations and warranties of the Company contained herein as of the
Execution Time and the Closing Date and any settlement date, to the accuracy of
the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) The Prospectus shall have been transmitted to the Commission for filing
pursuant to Rule 424(b) under the Securities Act within the prescribed time
period and prior to the Closing Date the Company shall have provided evidence
satisfactory to the Representatives of such timely filing; and no stop order
suspending the effectiveness of the Registration Statement shall be in effect,
and no proceedings for such purpose shall be pending before or threatened by the
Commission.
(b) Subsequent to the Execution Time or, if earlier, the dates as of which
information is given in the Registration Statement and the Prospectus (exclusive
of any supplement thereto), there shall not have occurred any change, or any
development involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business, from that set forth in the Prospectus (exclusive of
any supplement thereto), the effect of which, is, in the judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Shares as
contemplated by the Registration Statement (exclusive of any amendment thereof)
and the Prospectus (exclusive of any supplement thereto).
(c) Subsequent to the Execution Time, there shall not have occurred any
downgrading, nor shall any notice have been given of any intended or potential
downgrading or of a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act.
(d) The Underwriters shall have received on the Closing Date a certificate,
dated the Closing Date and signed by the President or any Vice President of the
Company and by the principal financial or accounting officer of the Company, to
the effect that the signers of such certificate have carefully examined the
Registration Statement and the Prospectus, any supplements to the Prospectus and
this Agreement and that:
(i) no stop order suspending the effectiveness of the Registration
Statement is in effect, and no proceedings for such purpose are pending
before or, to such officers' knowledge, threatened by the Commission;
8
(ii) the representations and warranties of the Company contained
herein are true and correct as of the Closing Date with the same effect as
if made on the Closing Date and the Company has complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied hereunder on or prior to the Closing Date; and
(iii) since the date of the most recent financial statements included
or incorporated by reference in the Prospectus (exclusive of any supplement
thereto), there has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations, of the Company and its subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business, from
that set forth in the Prospectus (exclusive of any supplement thereto).
The officer signing and delivering such certificate may rely upon the best
of his knowledge as to proceedings threatened.
(e) You shall have received on the Closing Date an opinion of ▇▇▇▇▇▇, ▇▇▇▇▇
& ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date and addressed to
the Representatives, to the effect that:
(i) the authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus;
(ii) the Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Shares will
not be subject to any preemptive or similar rights pursuant to the
Certificate of Incorporation of the Company; the form of stock certificate
for the Common Stock of the Company complies with the applicable
requirements of the Delaware General Corporation Law;
(iii) this Agreement has been duly authorized, executed and delivered
by the Company;
(iv) no authorization, consent, approval or order of any court or
governmental agency or body in the United States or any state or political
subdivision thereof is required for the issuance, sale or performance of
the Company's obligations with respect to the Shares, in the manner
contemplated by this Agreement, except such as are specified and have been
obtained and such as may be required by the securities or blue sky laws of
the various states in connection with the purchase and distribution of the
Shares by the Underwriters;
(v) the statements (A) in the Prospectus under "General Description
of the Offered Securities" and under "Description of the Common Stock" and
(B) in the Registration Statement in Item 15, insofar as such statements
constitute a summary of the legal matters, documents or proceedings
referred to therein, fairly present in all material
9
respects the information called for with respect to such legal matters,
documents and proceedings;
(vi) the Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described
in the Prospectus, will not be, an "investment company" or any entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended;
(vii) such counsel is of the opinion that the Registration Statement
and the Prospectus and any supplements or amendments thereto (except for
financial statements and schedules and other financial data and that part
of the Registration Statement that constitutes the Form T-1 referred to
above, as to which such counsel need not express any opinion) comply as to
form in all material respects with the Securities Act and the rules and
regulations of the Commission thereunder; and
(viii) the Registration Statement has become effective under the
Securities Act; any required filing of the 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); such counsel is not aware that any
stop order suspending the effectiveness thereof has been issued or any
proceedings for that purpose have been instituted or are pending or
threatened under the Securities Act.
Such counsel shall also have furnished to you a written statement, in form
and substance satisfactory to you, to the effect that nothing has come to such
counsel's attention that causes them to believe that (except for financial
statements and schedules and other financial data and except for that part of
the Registration Statement that constitutes the Form T-1 referred to above) the
Registration Statement as of the Effective Date or as of the Execution Time
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus, at of its date and as of the Closing
Date, contained or contains any untrue statement of a material fact or omitted
or omits 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.
With respect to the preceding paragraph, ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may
state that their opinion and belief are based upon their participation in the
preparation of the Registration Statement and Prospectus and any amendments or
supplements thereto (but not including documents incorporated therein by
reference) and review and discussion of the contents thereof (including
documents incorporated therein by reference), but is without independent check
or verification except as specified. The opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP
described in paragraph (e) above shall be rendered to you at the request of the
Company and shall so state therein.
Such opinion may be limited to the federal laws of the United States, the
laws of the Commonwealth of Pennsylvania and the State of New York and the
Delaware General Corporation Law.
10
(f) You shall have received on the Closing Date an opinion of the General
Counsel or Assistant General Counsel for the Company, dated the Closing Date, to
the effect that:
(i) the Company is validly existing as a corporation in good
standing under the laws of Delaware and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or the ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a Material Adverse Effect, and has all
corporate power and authority under its certificate of incorporation,
bylaws and the laws of the State of Delaware to own, lease and operate its
properties and conduct its business as described in the Prospectus;
(ii) each Subsidiary of the Company is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or the
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a Material Adverse Effect;
(iii) to the knowledge of such counsel, the outstanding shares of
capital stock of each Subsidiary (as defined above) have been duly and
validly authorized and issued and are fully paid and non-assessable and,
except as disclosed in the Prospectus (exclusive of any supplement
thereto), are owned by the Company or a wholly-owned subsidiary of the
Company to the extent described therein free and clear of all liens and
encumbrances and any other adverse claims (other than directors' qualifying
shares);
(iv) to the knowledge of such counsel, there is no action, suit or
proceeding pending or threatened against or affecting the Company or any of
its subsidiaries or any of its or their properties before or by any court,
governmental official, commission, board of other administrative agency or
arbitrator that (A) could reasonably be expected to have a material adverse
effect on the performance of this Agreement or the consummation of any of
the transactions contemplated hereby or (B) has a reasonable probability
(taking into account the exhaustion of all appeals) of having, individually
or in the aggregate, a Material Adverse Effect, except as disclosed in the
Prospectus (exclusive of any supplement thereto), or that in any manner
questions the validity of this Agreement or the Shares;
(v) neither the issue and sale of the Shares nor the consummation of
any other of the transactions herein contemplated nor the fulfillment of
the terms hereof will conflict with, result in a breach or violation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any of the Subsidiaries pursuant to, (i) the
organizational documents of the Company or any of the Subsidiaries, (ii)
the terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument known to such counsel to which the Company or any of
the Subsidiaries is a party or bound or to which its or their property is
subject, or (iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of the Subsidiaries known to such
11
counsel of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over the Company or
any of the subsidiaries or any of its or their properties; except in the
case of (ii) and (iii) above for any such conflicts, breaches or violations
that, individually or in the aggregate, would not reasonably be expected to
have a Material Adverse Effect or have the effect of preventing the Company
from performing any of its obligations under this Agreement.
(vi) such counsel does not know of any legal or governmental
proceeding pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company is
subject that is required to be described in the Registration Statement or
the Prospectus and is not so described or of any contract or other document
which is required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement that
is not described or filed as required;
(vii) such counsel is of the opinion that each document incorporated
by reference in the Prospectus (except for financial statements and other
financial data, as to which such counsel need not express any opinion)
complied as to form when filed with the Commission in all material respects
with the Exchange Act, and the rules and regulations of the Commission
thereunder; and
(viii) to the knowledge of such counsel, no holders of securities of
the Company have rights to the registration of such securities under the
Registration Statement.
Such counsel shall also have furnished to you a written statement, in form
and substance satisfactory to you, to the effect that nothing has come to such
counsel's attention that causes such counsel to believe that (except for
financial statements and schedules and other financial data, as to which such
counsel need not express any belief, and except for that part of the
Registration Statement that constitutes the Form T-1 referred to above) the
Registration Statement at the time the Registration Statement became effective
or as of the Execution Time contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus, as of its
date or as of the Closing Date, contained or contains any untrue statement of a
material fact or omitted or omits 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.
With respect to the preceding paragraph, such counsel may state that such
counsel's opinion and belief is based upon such counsel's participation in the
preparation of the Registration Statement and Prospectus and any amendments or
supplements thereto and documents incorporated therein by reference and review
and discussion of the contents thereof, but is without independent check or
verification except as specified.
(g) You shall have received on the Closing Date an opinion of Mayer, Brown,
▇▇▇▇ & Maw, counsel for the Underwriters, dated the Closing Date and addressed
to the Representatives, with respect to the issuance and sale of the Shares, the
Registration Statement, the Prospectus (together with any supplement thereto)
and other related matters as the
12
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.
(h) You shall have received on the date hereof and on the Closing Date
letters dated respectively as of the date hereof and as of the Closing Date, in
form and substance satisfactory to you, from KPMG LLP, confirming that they are
independent public accountants within the meaning of the Securities Act and the
Exchange Act and the respective published rules and regulations thereunder and
stating, as of the date hereof or the Closing Date, as the case may be (or, with
respect to matters involving changes or developments since the respective dates
as of which specified financial information is given in the Prospectus, as of a
date not more than three days prior to either such date), the conclusions and
findings of such firm with respect to the financial information and other
matters as provided in SAS No. 72. References to the Prospectus in this
paragraph (h) include any supplement thereto at the date of the letter.
(i) You shall have received from the Company, prior to the Closing Date,
such further information, certificates and documents as you may reasonably
request.
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. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The several obligations of the Underwriters to purchase Option Shares
hereunder are subject to the receipt by you on the Option Closing Date of such
supplemental opinions, certificates and letters as you may reasonably request
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date.
The documents required to be delivered by this Section 5 shall be delivered
at the office of Mayer, Brown, ▇▇▇▇ & Maw, counsel for the Underwriters, at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
6. Agreements. In further consideration of the agreements of the
Underwriters herein contained, the Company covenants as follows:
(a) To cause the 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 to provide evidence satisfactory to
the Representatives of such timely filing. The Company will promptly advise the
Representatives (i) when the Prospectus, and any supplement thereto, shall have
been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when,
prior to termination of the offering of the Shares, any amendment to the
Registration Statement shall have been filed or become effective, (iii) of any
request by the Commission or its staff for any amendment of the Registration
Statement or for any supplement to the Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or
13
threatening of any proceeding for that purpose and (v) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Shares for sale in any jurisdiction or the institution or threatening of
any proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) To furnish you and counsel for the Underwriters, without charge, two
signed copies of the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and, during the period mentioned in
paragraph (e) below, as many copies of the Prospectus, and any supplements and
amendments thereto or to the Registration Statement as you may reasonably
request. The terms "supplement" and "amendment" or "amend" as used in this
Agreement shall include all documents subsequently filed by the Company with the
Commission pursuant to the Exchange Act that are deemed to be incorporated by
reference in the Prospectus.
(c) The Company will pay the costs and expenses relating to the following
matters: (i) the preparation, printing or reproduction and filing with the
Commission of each preliminary prospectus, the Prospectus and any supplement to
either of them; (ii) the printing (or reproduction) and delivery (including
postage, air freight charges and charges for counting and packaging) of such
copies of the Registration Statement, each preliminary prospectus, the
Prospectus, and all amendments or supplements to any of them, as may, in each
case, be reasonably requested for use in connection with the offering and sale
of the Shares; (iii) the preparation, printing, issuance and delivery of
certificates for the Shares, including any stamp or transfer taxes in connection
with the issuance and sale of the Shares; (iv) the printing (or reproduction)
and delivery of this Agreement, any blue sky memorandum and all agreements of
documents printed (or reproduced) and delivered in connection with the offering
of the Shares; (v) the registration of the Shares under the Exchange Act and the
listing of the Shares on any exchange; (vi) the transportation and other
expenses incurred by or on behalf of Company representatives in connection with
presentations to prospectus purchasers of the Shares; (vii) the fees and
expenses of the Company's accountants and the fees and expenses of counsel
(including local and special counsel) for the Company; and (viii) all other
costs and expenses incident to the performance by the Company of its obligations
hereunder.
(d) Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Shares, to furnish you a copy of each such
proposed amendment or supplement, and to file no such proposed amendment or
supplement (other than quarterly and annual reports on Forms 10-Q and 10-K or
current reports on Form 8-K) to which you reasonably object.
(e) If, during such period after the first date of the public offering of
the Shares as in the opinion of your counsel the Prospectus is required by law
to be delivered in connection with sales by an Underwriter or dealer, any event
shall occur or condition exist as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in the light
of the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if, in the opinion of your counsel, it is necessary to amend or
supplement the Prospectus to comply with law, forthwith to (i) notify you of
such event, and (ii) prepare, file with the Commission and furnish, at its own
expense, to the Underwriters and to the dealers (whose
14
names and addresses you will furnish to the Company) to which Shares may have
been sold by you on behalf of the Underwriters and to any other dealers upon
request, in such quantities as you may reasonably request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the Prospectus
will comply with law.
(f) To endeavor with the assistance of your counsel to qualify the Shares
for offer and sale under the securities or blue sky laws of such jurisdictions
as you shall reasonably request and to pay all reasonable expenses (including
fees and disbursements of counsel) in connection with such qualification, as
well as all filing fees payable in connection with the review (if any) of the
offering of the Shares by the National Association of Securities Dealers, Inc.;
provided, however, that in connection therewith the Company shall not be
obligated to qualify as a foreign corporation in any jurisdiction in which it is
not so qualified, to take any action that would subject it to service of process
in suits, other than those arising out of the offering and sale of the Shares,
in any jurisdiction in which it is not now subject, or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise subject.
(g) To make generally available to the Company's security holders as soon
as practicable an earnings statement that satisfies the provisions of Section
11(a) of the Securities Act and Rule 158 under the Securities Act.
(h) To use its best efforts to have the Shares listed on each exchange upon
which the Prospectus states the Shares will be listed, if any.
(i) During a period of two years from the Execution Time, to furnish or
make available, whether in hard copy or electronic form, to you copies of all
reports or other communications (financial or other) furnished to stockholders
of the Company, and to deliver to you as soon as they are available, copies of
any reports and financial statements furnished to or filed with the Commission
or any national securities exchange on which any class of securities of the
Company is listed.
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 Securities Act or
the Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the
Securities 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 Shares as originally
filed or in any amendment thereof, or in any preliminary prospectus or the
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
15
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; 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 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 specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) Each Underwriter severally and not jointly 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 Securities 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 relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that, under the
heading "Underwriting" or "Plan of Distribution" in any preliminary prospectus
and the Prospectus, (i) the list of Underwriters and their respective
participation in the sale of the Shares, (ii) the sentences related to
concessions and reallowances and (iii) the paragraphs related to stabilization,
syndicate covering transactions and penalty bids constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion
in any preliminary prospectus or the Prospectus.
(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 (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) 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
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint 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
16
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. 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.
(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 severally 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 on the one hand and by the
Underwriters on the other from the offering of the Shares; 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 Shares) be
responsible for any amount in excess of the underwriting discount or commission
applicable to the Shares purchased by such Underwriter hereunder. If the
allocation provided by the immediately preceding sentence is unavailable for any
reason, the Company and the Underwriters severally shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and of the Underwriters on the
other 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) received by it, and benefits received by
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 Prospectus.
Relative fault shall be determined by reference to, among other things, whether
any untrue or any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information provided by the
Company on the one hand or the Underwriters on the other, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such untrue 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
Securities 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
Securities 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 Securities 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).
17
The indemnity and contribution agreements contained in this Section 7, the
provisions of Section 10 and the representations and warranties of the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination or cancellation of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Company, its officers or directors or
any other person controlling the Company and (iii) acceptance of and payment for
any of the Shares.
8. 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 at any time prior to such time
(i) trading generally shall have been suspended or materially limited on or by,
as the case may be, the New York Stock Exchange, or minimum prices have been
established by such exchange, (ii) trading of any securities of the Company
shall have been suspended on any exchange or in any over-the-counter market,
(iii) a general moratorium on commercial banking activities in New York shall
have been declared by either federal or New York State authorities, or (iv)
there shall have occurred any outbreak or escalation of hostilities, declaration
by the United States of a national emergency or war, or any significant change
in financial markets or any calamity or crisis the effect of which on financial
markets is such as to make it, in the judgment of the Representatives,
impractical or inadvisable to proceed with the offering or delivery of the
Shares as contemplated by the Prospectus (exclusive of any supplement thereto).
9. Default by an Underwriter. If, on the Closing Date or the Option Closing
Date, as the case may be, any one or more of the Underwriters shall fail or
refuse to purchase Shares that it or they have agreed to purchase hereunder on
such date, and the aggregate number of Shares which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate number of the Shares to be purchased on such date,
the other Underwriters shall be obligated severally in the proportions that the
number of Shares set forth opposite their respective names in Schedule I bears
to the number of Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase the
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; provided that in no event shall the number of
Shares that any Underwriter has agreed to purchase pursuant to Section 2 be
increased pursuant to this Section 9 by an amount in excess of one-ninth of such
number of Shares without the written consent of such Underwriter. If, on the
Closing Date or the Option Closing Date, as the case may be, any Underwriter or
Underwriters shall fail or refuse to purchase Shares and the aggregate number of
Shares with respect to which such default occurs is more than one-tenth of the
aggregate number of Shares to be purchased on such date, the non-defaulting
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Shares, and if such non-defaulting
Underwriters do not purchase all of the Shares, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the Company.
In any such case either you or the Company shall have the right to postpone the
Closing Date or the Option Closing Date, as the case may be, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under
18
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
10. Reimbursement of Underwriters' Expenses. If this Agreement shall be
terminated by the Underwriters, or any of them, because of any failure,
inability or refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement or because of any termination
pursuant to Section 8 hereof, the Company will reimburse the Underwriters or
such Underwriters as have so terminated this Agreement with respect to
themselves, severally on demand for all out-of-pocket expenses (including the
reasonable fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated
hereunder.
The Underwriters agree to advise the Company promptly of the completion of
the distribution of the Shares.
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 telefaxed to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. General Counsel (fax no.: (212)
▇▇▇-▇▇▇▇) and confirmed to the General Counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel; or, if
sent to the Company, will be mailed, delivered or telefaxed to FMC Corporation,
Attention: Treasurer (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General
Counsel, FMC Corporation, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: General Counsel (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇)).
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers,
directors, employee, agents and controlling persons referred to in Section 7
hereof, and no other person will have any right or obligation hereunder.
13. Counterparts. This Agreement may be signed in two or more counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
14. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
* * * * *
19
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,
FMC CORPORATION
By:
-----------------------
Name:
Title:
Accepted, June 5, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
Acting on behalf of themselves and the several
Underwriters named in Schedule I hereto
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By:
----------------------
Name:
Title:
20
SCHEDULE I
Number of
Firm Shares
Underwriter be Purchased
----------- ------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ................................... 3,250,000
Total ..................................... 3,250,000
