$120,000,000 of 6.846% MandatOry Par Put Remarketed Securities due May 11, 2025
CYTEC INDUSTRIES INC.
Underwriting Agreement
May 6, 0000
Xxx Xxxx, Xxx Xxxx
To the Representatives
named in Schedule I
hereto of the
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Cytec Industries Inc., a Delaware corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, the principal amount of its securities identified in
Schedule I hereto (the "Securities"), to be issued under an indenture (the
"Indenture") dated as of March 15, 1998, between the Company and PNC Bank,
National Association, as trustee (the "Trustee"). The terms of such sales,
pursuant to this Agreement, are described in Schedule I hereto. If the firm
or firms listed in Schedule II hereto include only the firm or firms listed
in Schedule I hereto, then the terms "Underwriters" and "Representatives",
as used herein, shall each be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, each Underwriter as set forth below in this Section 1.
Certain terms used in this Section 1 are defined in paragraph (c) hereof.
(a) If the offering of the Securities is a Delayed Offering (as
specified in Schedule I hereto), paragraph (i) below is applicable
and, if the offering of the Securities is a Non-Delayed Offering (as
so specified), paragraph (ii) below is applicable.
(i) The Company meets the requirements for the use of Form S-3
under the Securities Act of 1933, as amended (the "Act") and has
filed with the Securities and Exchange Commission (the "Commission")
a registration statement (the file number of which is set forth in
Schedule I hereto) on such Form, including a basic prospectus, for
registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more amendments
thereto, and may have used a Preliminary Final Prospectus, each of
which has previously been furnished to you. Such registration
statement, as so amended, has become effective. The
offering of the Securities is a Delayed Offering and, although
the Basic Prospectus may not include all the information with
respect to the Securities and the offering thereof required by
the Act and the rules thereunder to be included in the Final
Prospectus, the Basic Prospectus is responsive to all the
disclosure requirements of the Act and the rules and regulations
thereunder as of the Effective Date. The Company will next file
with the Commission pursuant to Rules 415 and 424(b)(2) or (5) a
final supplement to the form of prospectus included in such
registration statement relating to the Securities and the
offering thereof. As filed, such final prospectus supplement
shall include all required information with respect to the
Securities and the offering thereof and, except to the extent the
Representatives shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you prior
to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the Basic
Prospectus and any Preliminary Final Prospectus) as the Company
has advised you, prior to the Execution Time, will be included or
made therein. The Company shall not file a Rule 462(b)
Registration Statement without the consent of the
Representatives.
(ii) The Company meets the requirements for the use of Form
S-3 under the Act and has filed with the Commission a
registration statement (the file number of which is set forth in
Schedule I hereto) on such Form, including a basic prospectus,
for registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more amendments
thereto, including a Preliminary Final Prospectus, each of which
has previously been furnished to you. The Company will next file
with the Commission either (x) a final prospectus supplement
relating to the Securities in accordance with Rules 430A and
424(b)(1) or (4), or (y) prior to the effectiveness of such
registration statement, an amendment to such registration
statement, including the form of final prospectus supplement. In
the case of clause (x), the Company has included in such
registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the
Act and the rules thereunder to be included in the Final
Prospectus with respect to the Securities and the offering
thereof. As filed, such final prospectus supple ment or such
amendment and form of final prospectus supplement shall contain
all Rule 430A Information, together with all other such required
information, with respect to the Securities and the offering
thereof and, except to the extent the Representatives shall agree
in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other
changes (beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has advised you,
prior to the Execution Time, will be included or made therein.
The Company shall not file a Rule 462(b) Registration Statement
without the consent of the Representatives.
(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Final
Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act") (with respect to
documents incorporated by reference in the Registration Statement) and
the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act") and the respective rules thereunder; on the Effective Date, the
Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; on the Effective Date and on the
Closing Date the Indenture did or will comply in all material respects
with the requirements of the Trust Indenture Act and the rules
thereunder; and, on the Effective Date, the Final Prospectus, if not
filed pursuant to Rule 424(b), did not or will not, and on the date of
any filing pursuant to Rule 424(b) and on the Closing Date, the Final
Prospectus (together with any supplement thereto) will not, include
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or
warranties as to (i) that part of the Registration Statement which
shall constitute the Statement of Eligibility and Qualification (Form
T-1) under the Trust Indenture Act of the Trustee or (ii) the
information contained in or omitted from the Registration Statement or
the Final Prospectus (or any supplement thereto) in reliance upon and
in conformity with information furnished in writing to the Company by
or on behalf of any Underwriter through the Representatives expressly
and specifically for inclusion in the Registration Statement or the
Final Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. "Effective Date" shall mean each date
that the Registration Statement and any post-effective amendment or
amendments thereto and any Rule 462(b) Registration Statement became
or becomes effective and each date after the date hereof on which a
document incorporated by reference in the Registration Statement is
filed. "Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto. "Basic
Prospectus" shall mean the prospectus referred to in paragraph (a)
above contained in the Registration Statement at the Effective Date
including, in the case of a Non-Delayed Offering, any Preliminary
Final Prospectus. "Preliminary Final Prospectus" shall mean any
preliminary prospectus supplement to the Basic Prospectus which
describes the Securities and the offering thereof and is used prior to
filing of the Final Prospectus. "Final Prospectus" shall mean the
prospectus supplement relating to the Securities that is first filed
pursuant to Rule 424(b) after the Execution Time, together with the
Basic Prospectus or, if, in the case of a Non-Delayed Offering, no
filing pursuant to Rule 424(b) is required, shall mean the form of
final prospectus relating to the Securities, including the Basic
Prospectus, included in the Registration Statement at the Effective
Date. "Registration Statement" shall mean the registration statement
referred to in paragraph (a) above, including incorporated documents,
exhibits and financial statements, as amended at the Execution Time
(or, if not effective at the Execution Time, in the form in which it
shall become effective) and, in the event
any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date (as hereinafter
defined), shall also mean such registration statement as so amended or
such Rule 462(b) Registration Statement, as the case may be. Such term
shall include any Rule 430A Information deemed to be included therein
at the Effective Date as provided by Rule 430A. "Rule 415", "Rule
424", "Rule 430A", "Rule 462(b)" and "Regulation S-K" refer to such
rules or regulation under the Act. "Rule 430A Information" means
information with respect to the Securities and the offering thereof
permitted to be omitted from the Registration Statement when it
becomes effective pursuant to Rule 430A. "Rule 462(b) Registration
Statement" shall mean a registration statement and any amendments
thereto filed pursuant to Rule 462(b) relating to the offering covered
by the Registration Statement. Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be; and any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein by
reference. A "Non-Delayed Offering" shall mean an offering of
securities which is intended to commence promptly after the effective
date of a registration statement, with the result that, pursuant to
Rules 415 and 430A, all information (other than Rule 430A Information)
with respect to the securities so offered must be included in such
registration statement at the effective date thereof. A "Delayed
Offering" shall mean an offering of securities pursuant to Rule 415
which does not commence promptly after the effective date of a
registration statement, with the result that only information required
pursuant to Rule 415 need be included in such registration statement
at the effective date thereof with respect to the securities so
offered. Whether the offering of the Securities is a Non-Delayed
Offering or a Delayed Offering shall be set forth in Schedule I
hereto.
(d) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission.
(e) Except as described in the Final Prospectus, since the
respective dates as of which information is given in the Registration
Statement and the Final Prospectus, there has not been (i) any
increase in the long-term debt of the Company and its consolidated
subsidiaries in an amount in excess of $10,000,000, other than
indebtedness incurred to pay obligations under the rate lock
agreements of the Company described in the Final Prospectus or (ii)
except as set forth or contemplated in the Final Prospectus, any
material adverse change, or development or event likely to result in a
prospective material adverse change, in or affecting the general
affairs, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, taken as a
whole (a "Material Adverse Effect").
(f) The Company and each of Cytec Fiberite Inc., Cytec Global
Holdings Inc. and Cytec Technology Corp. (the "Material Subsidiaries")
have been duly incorporated and are validly existing as corporations
in good standing under the laws of the State of Delaware, with
corporate power and authority to own their properties and conduct
their business as described in the Final Prospectus, to execute and
deliver this Agreement, any Delayed Delivery Contracts and the
Indenture and to issue and sell the Securities as herein contemplated
and have been duly qualified as foreign corporations for the
transaction of business and are in good standing under the laws of
each other jurisdiction in which they own or lease properties or
conduct any business so as to require such qualification, except where
failure to be so qualified would not reasonably be expected to have a
Material Adverse Effect.
(g) The Company and each of its Material Subsidiaries have good
title to all manufacturing plants or facilities (together with the
land upon which it is erected and fixtures comprising a part thereof)
located in the United States of America (excluding territories and
possessions) the net book value (as defined in the Indenture) of which
exceeds 1.5% of Consolidated Net Tangible Assets (as defined in the
Indenture), except any such plant or facility which is a pollution
control or other facility financed by obligations issued by a state or
local governmental unit and described in Sections 141(a), 142(a)(5),
142(a)(6), 142(a)(10) or 144(a) of the Internal Revenue Code of 1986,
as amended (or any successor provision thereof), or which in the
opinion of the Board of Directors of the Company is not of material
importance to the total business conducted by the Company and its
subsidiaries as a whole (each, a "Principal Property" and
collectively, the "Principal Properties"), in each case free and clear
of all liens, encumbrances and defects except such as are described in
the Final Prospectus or such as do not materially affect the value of
such Principal Property and do not interfere with the use made of such
Principal Property by the Company and its Material Subsidiaries,
except where such impairment or interference would not reasonably be
expected to have a Material Adverse Effect; and the Principal
Properties held under lease by the Company and the Material
Subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere
with the use made of such Principal Property by the Company and the
Material Subsidiaries except where such interference would not
reasonably be expected to have a Material Adverse Effect.
(h) The execution, delivery and performance of this Agreement,
any Delayed Delivery Contracts and the Indenture, the issuance and
sale of the Securities and the consummation of the transactions
contemplated hereby and thereby will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument of which the Company
or any of the Material Subsidiaries is a party or by which the Company
or any of the Material Subsidiaries is bound or to which any of the
property or assets of the Company or any of the Material Subsidiaries
is subject, except where such breach or violation would not reasonably
be expected to have a Material Adverse Effect,
nor will such action result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company or any statute
or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of the Material
Subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue
and sale of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement, except the registration
under the Act of the Securities, qualification of the Indenture under
the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state or
foreign securities or Blue Sky laws in connection with the purchase
and distribution of the Securities by the Underwriters.
(i) Neither the Company nor any of the Material Subsidiaries is
(i) in violation of its Certificate of Incorporation or By-laws or
(ii) in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument
to which it is a party or by which it or any of its properties may be
bound, where such default would be reasonably likely to have a
Material Adverse Effect.
(j) The Indenture has been duly authorized by the Company and
when executed and delivered by the Company will be a legal, valid and
binding agreement of the Company enforceable in accordance with its
terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and general principles of
equity.
(k) The Securities, when issued in accordance with this Agreement
and the Indenture, will have been duly authorized by the Company and
when executed and delivered by the Company will constitute legal,
valid and binding obligations of the Company enforceable in accordance
with their terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and general principles of
equity.
(l) The Delayed Delivery Contracts, if any, have been duly
authorized by the Company and when executed and delivered by the
Company will constitute legal, valid and binding obligations of the
Company enforceable in accordance with their terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally and general principles of equity.
(m) The Remarketing Agreement to be dated May 11, 1998 between
the Company and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
(the "Remarketing Agreement") has been duly authorized by the Company
and, when executed and delivered by the Company, will constitute a
legal, valid and binding obligation of the Company enforceable in
accordance with its terms (subject to applicable bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium or other
laws now or hereafter in effect relating to creditors' rights
generally and subject to general principles of equity, including,
without limitation, concepts of reasonableness, good faith and fair
dealing, regardless of whether in a proceeding at law or in equity,
and except that rights to indemnification or contribution may be
limited by Federal or State securities laws or public policy relating
thereto).
(n) This Agreement has been duly authorized, executed and
delivered by the Company.
(o) The Securities, the Delayed Delivery Contracts, if any, the
Indenture and the Remarketing Agreement conform in all material
respects to the description thereof contained in the Registration
Statement and Final Prospectus (as applicable).
(p) KPMG Peat Marwick LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of
the Commission thereunder.
(q) All legal or governmental proceedings, contracts or documents
of a character required to be described in the Registration Statement
or the Final Prospectus or to be filed as an exhibit to the
Registration Statement have been so described or filed as required.
(r) Other than as set forth or contemplated in the Final
Prospectus, there are no legal or governmental proceedings pending to
which the Company or any of the Material Subsidiaries is a party or of
which any property of the Company or any of the Material Subsidiaries
is the subject which, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect; and, to the
best of the Company's knowledge, there are no proceedings threatened
or contemplated by governmental authorities or threatened by others
which would reasonably be expected to have a Material Adverse Effect.
(s) The consolidated financial statements included or
incorporated by reference in the Registration Statement and the Final
Prospectus present fairly the consolidated financial position of the
Company and its subsidiaries as of the dates indicated and the
consolidated results of operations and the consolidated cash flows of
the Company and its subsidiaries for the periods specified; such
financial statements, except as described therein, have been prepared
in conformity with generally accepted accounting principles applied on
a consistent basis during the periods involved.
(t) The Company is not and, after giving effect to the offering
and sale of the Securities, will not be an "investment company" or an
entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(u) Neither the Company nor any of its affiliates as defined
within Section 517.021 of the Florida Statutes does business with the
government of
Cuba or with any person or affiliate located in Cuba within the
meaning of Section 517.075, Florida Statutes.
(v) Other than as set forth or contemplated in the Final
Prospectus, each of the Company and the Material Subsidiaries are in
material compliance with all applicable federal, state and local
environmental laws and regulations, including those applicable to
emissions to the environment, waste management and waste disposal
(collectively, "Environmental Laws"), except for such noncompliance as
would not, to the best knowledge of the Company, reasonably be
expected to have a Material Adverse Effect.
(w) Other than as set forth or contemplated in the Final
Prospectus, (i) there is no claim under any Environmental Law,
including common law, pending or, to the best knowledge of the
Company, threatened or contemplated against the Company or the
Material Subsidiaries (an "Environmental Claim") which would
reasonably be expected to have a Material Adverse Effect and (ii) to
the knowledge of the Company, under applicable law, there are no past
or present actions, activities, circumstances, events or incidents,
including releases of any material into the environment, that could
form the basis of any Environmental Claim against the Company or the
Material Subsidiaries which would reasonably be expected to have a
Material Adverse Effect.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase
price set forth in Schedule I hereto the principal amount of the Securities
set forth opposite such Underwriter's name in Schedule II hereto, except
that, if Schedule I hereto provides for the sale of such Securities
pursuant to delayed delivery arrangements, the respective principal amount
of such Securities to be purchased by the Underwriters shall be as set
forth in Schedule II hereto less the respective principal amount of
Contract Securities determined as provided below. Securities to be
purchased by the Underwriters are herein sometimes called the
"Underwriters' Securities" and Securities to be purchased pursuant to
Delayed Delivery Contracts as hereinafter pro vided are herein called
"Contract Securities".
If so provided in Schedule I hereto, the Underwriters are authorized
to solicit offers to purchase Securities from the Company pursuant to
delayed delivery contracts ("Delayed Delivery Contracts"), substantially in
the form of Schedule III hereto but with such changes therein as the
Company may authorize or approve. The Underwriters will endeavor to make
such arrangements and, as compensation therefor, the Company will pay to
the Representatives, for the account of the Underwriters, on the Closing
Date, the percentage set forth in Schedule I hereto of the principal amount
of the Securities for which such Delayed Delivery Contracts are made.
Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. The
Company will enter into Delayed Delivery Contracts in all cases where sales
of Contract Securities arranged by the Underwriters have been approved by
the Company but, except as the Company may otherwise agree, each such
Delayed Delivery Contract must be for not less than the minimum principal
amount set forth in Schedule I hereto and the aggregate principal amount of
Contract Securities may not exceed the
maximum aggregate principal amount set forth in Schedule I hereto. The
Underwriters will not have any responsibility in respect of the validity or
performance of any Delayed Delivery Contracts. The principal amount of
Securities to be purchased by each Underwriter as set forth in Schedule II
hereto shall be reduced by an amount equal to the total principal amount of
Contract Securities multiplied by a fraction, the numerator of which is the
principal amount of Securities set forth opposite the name of such
Underwriter and the denominator of which is the aggregate principal amount
set forth in Schedule II hereto, except to the extent that you determine
that such reduction shall be otherwise than in such proportion and so
advise the Company in writing; provided, however, that the total principal
amount of Securities to be purchased by all Underwriters shall be the
aggregate principal amount set forth in Schedule II hereto less the
aggregate principal amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for the Underwriters'
Securities shall be made on the date and at the time specified in Schedule
I hereto (or such later date not later than five business days after such
specified date as the Representatives shall designate), which date and time
may be postponed by agreement between the Representatives, acting jointly
and without regard to any agreement among underwriters, and the Company or
as provided in Section 8 hereof (such date and time of delivery and payment
for the Underwriters' Securities being herein called the "Closing Date").
Delivery of the Underwriters' Securities shall be made to the
Representatives for the respective accounts of the several Underwriters
against payment by the several Underwriters through the Representatives of
the purchase price thereof to or upon the order of the Company by certified
or official bank check or checks drawn on or by a New York Clearing House
bank and payable in same day funds or as otherwise may be agreed as set
forth in Schedule I hereto. Delivery of the Underwriters' Securities shall
be made at such location as the Representatives shall reasonably designate
at least one business day in advance of the Closing Date and payment for
the Securities shall be made at the office specified in Schedule I hereto.
Certificates for the Underwriters' Securities shall be registered in such
names and in such denominations as the Representatives may request not less
than one full business day in advance of the Closing Date.
The Company agrees to have the Underwriters' Securities available for
inspection, checking and packaging by the Representatives in New York, New
York, not later than 1:00 PM on the business day prior to the Closing Date.
4. Agreements. The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and
any amendment thereto, to become effective. Prior to the termination
of the offering of the Securities, the Company will not file any
amendment to the Registration Statement or supple ment (including the
Final Prospectus or any Preliminary Final Prospectus) to the Basic
Prospectus unless the Company has furnished you a copy for your review
prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object on a timely basis. Subject
to the foregoing sentence, the Company will cause the Final
Prospectus, properly completed, and any supplement thereto to be filed
with the Commission pursuant to the applicable paragraph of Rule
424(b) within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The Company
will promptly advise the Representatives (i) when the Registration
Statement, if not effective at the Execution Time, and any amendment
thereto, shall have become effective, (ii) when the Final Prospectus,
and any supplement thereto, shall have been filed with the Commission
pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement
shall have been filed with the Commission, (iii) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, or
any document that would be incorporated therein by reference shall
have been filed, (iv) of any request by the Commission at any time
when a prospectus relating to the Securities is required to be
delivered under the Act for any amendment of the Registration
Statement or supplement to the Final Prospectus or for any additional
information relating to the offering of the Securities, (v) of the
issuance by the Commission at any time when a prospectus relating to
the Securities is required to be delivered under the Act of any stop
order suspending the effectiveness of the Registration Statement or
the institution or threatened institution of any proceeding for that
purpose and (vi) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securities
for sale in any jurisdiction or the initiation or threatened
initiation of any proceeding for such purpose. The Company will use
its best efforts to prevent the issuance of any such stop order and,
if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time, prior to the completion of the distribution
of the Securities by the Underwriters (notification of completion to
be sent to the Company within 24 hours of such completion), when a
prospectus relating to the Securities is required to be delivered
under the Act, any event occurs as a result of which the Final
Prospectus as then supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary to make
the statements therein in the light of the circumstances under which
they were made not misleading, or if it shall be necessary, in the
opinion of counsel for the Company, to amend the Registration
Statement or supplement the Final Prospectus to comply with the Act or
the Exchange Act or the respective rules thereunder, the Company
promptly will (i) advise the Underwriters promptly of the happening of
such event, (ii) prepare and file with the Commission, at the
Company's expense, subject to the second sentence of paragraph (a) of
this Section 4, an amendment or supplement which will correct such
statement or omission or effect such compliance and (iii) supply any
supplemented Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, but in any event not later than
eighteen months after the Effective Date, the Company will make
generally available to its security holders and to the Representatives
an earnings statement or statements of the Company and its
subsidiaries which will satisfy the provisions of Section 11(a) of the
Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel
for the Underwriters, without charge, copies of the Registration
Statement and documents incorporated by reference therein (not
including the exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as
many copies of any Preliminary Final Prospectus and the
Final Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(e) The Company will arrange for the qualification of the
Securities offered by the Company for sale under the laws of such
jurisdictions as the Representatives may designate, will maintain such
qualifications in effect so long as required for the distribution of
the Securities, will arrange for the determination of the legality of
the Securities for purchase by institutional inves tors and will pay
the fee of the National Association of Securities Dealers, Inc., in
connection with its review, if any, of the offering; provided,
however, that the Company shall not be required to (i) qualify as a
foreign corporation or as a dealer in securities in any jurisdiction
where it would not otherwise be required to qualify but for this
Section 4(e), (ii) file any general consent to service of process or
(iii) subject itself to taxation in any such jurisdiction if it is not
so subject.
(f) The Company will furnish to the Representatives upon request,
without charge, for so long as any of the Securities shall remain
outstanding, up to a period of one year from the date hereof, (i)
copies of any reports or other communications which the Company shall
send to its stockholders as a class and (ii) copies of all annual,
quarterly and current reports filed with the Commission on Forms 10-K,
10-Q and 8-K, or such other similar form as may be designated by the
Commission and copies of any other reports or financial statements
furnished to or filed with any national securities exchange on which
any class of securities of the Company is listed.
(g) The Company will furnish to the Representatives as early as
practicable prior to the time of purchase, but no later than two
business days prior thereto, a copy of the latest available unaudited
interim consolidated financial statements, if any, of the Company and
its subsidiaries which have been read by the Company's independent
certified public accountants, as stated in their letter to be
furnished pursuant to Section 5(f) of this Agreement.
(h) The Company agrees to apply the net proceeds from the sale of
the Securities in the manner set forth under the caption "Use of
Proceeds" in the Final Prospectus.
(i) The Company agrees to pay all expenses, fees and taxes
incident to the performance of its obligations under this Agreement,
including, without limitation, (i) the preparation and filing of the
Registration Statement, each related preliminary prospectus, the Final
Prospectus, any documents incorporated by reference therein at or
after the date thereof and any amendments or supplements thereto, and
the printing and furnishing of copies of each thereof to the
Underwriters and to dealers (including costs of mailing and shipment),
(ii) the preparation, issuance, execution, authentication and delivery
of any engraved Securities, (iii) the qualification of the Securities
for offering and sale under state laws and the determination of their
eligibility for investment under state law as aforesaid (including the
legal fees and filing fees and other disbursements of counsel for the
Underwriters) and the printing and furnishing of copies of any blue
sky surveys or legal investment surveys to the Underwriters and to
dealers,
(iv) any listing of the Securities on any securities exchange and any
registration thereof under the Exchange Act, (v) any fees payable to
investment rating agencies with respect to the Securities, (vi) any
filing for review of the public offering of the Securities by the
National Association of Securities Dealers, Inc. and (vii) the fees
and disbursements of the Trustee. It is understood, however, that,
except as provided in (iii) above and Section 6 hereof, the
Underwriters will pay all of their own costs and expenses, including
the fees of their counsel, any transfer taxes, and any advertising
expenses connected with any offers they may make.
(j) The Company agrees to furnish to you, before filing with the
Commission subsequent to the effective date of the Registration
Statement and during the period referred to in paragraph (b) above, a
copy of any document proposed to be filed pursuant to Section 13, 14
or 15(d) of the Exchange Act.
(k) The Company agrees to such other provisions as may be set
forth in Schedule I hereto.
5. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Underwriters' Securities shall be
subject to the accuracy of the representations and warranties on the part
of the Company contained herein as of the Execution Time and the Closing
Date, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof and to the following
additional conditions:
(a) If the Registration Statement has not become effective prior
to the Execution Time, unless the Representatives agree in writing to
a later time, the Registration Statement will become effective not
later than (i) 6:00 PM New York City time, on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 PM New York City time on such date or
(ii) 12:00 Noon on the business day following the day on which the
public offering price was determined, if such determination occurred
after 3:00 PM New York City time on such date; if filing of the Final
Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Final Prospectus, and any such supplement, shall have been
filed in the manner and within the time period required by Rule
424(b); and at the Closing Date no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have furnished to the Representatives the
opinion of Xxxxxx X. Xxxxxxx, Vice President, General Counsel and
Secretary of the Company, dated the Closing Date, to the effect that:
(i) each of the Company and the Material Subsidiaries has
been duly incorporated and is validly existing and, based solely
on a certificate of good standing, is in good standing under the
laws of the jurisdiction in which it is chartered or organized,
with full corporate power and authority to own its properties and
conduct its business as described in the Final Prospectus, and,
based solely on certificates of good standing or other similar
certificates of public officials and officers of the Company, is
duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each U.S. jurisdiction which requires
such qualification wherein it owns or leases a manufacturing
facility and where its failure to so qualify would reasonably be
expected to have a Material Adverse Effect;
(ii) all outstanding shares of capital stock of the Material
Subsidiaries are owned by the Company either directly or by
wholly owned subsidiaries free and clear of any perfected
security interest;
(iii) the Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization,
execution and delivery by the Trustee, constitutes a legal, valid
and binding instrument enforceable against the Company in
accordance with its terms (subject to applicable bankruptcy,
reorganization, insolvency, fraudulent transfer, moratorium or
other laws now or hereafter in effect relating to creditors'
rights generally and subject to general principles of equity,
including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of
whether in a proceeding at law or in equity); and the Securities
have been duly authorized by the Company and, when executed and
authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters pursuant to
this Agreement, in the case of the Underwriters' Securities, or
by the purchasers thereof pursuant to Delayed Delivery Contracts,
in the case of any Contract Securities, will constitute legal,
valid and binding obligations of the Company entitled to the
benefits of the Indenture and enforceable against the Company in
accordance with their terms (subject to applicable bankruptcy,
reorganization, insolvency, fraudulent transfer, moratorium or
other laws now or hereafter in effect relating to creditors'
rights generally and subject to general principles of equity,
including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of
whether in a proceeding at law or in equity);
(iv) to the knowledge of such counsel, there is no pending
or threatened suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company
or any of the Material Subsidiaries that would reasonably be
expected to have a Material Adverse Effect and is of a character
required to be disclosed in the Registration Statement which is
not disclosed in the Final Prospectus and there is no franchise,
contract or other document of a character required to be
described in the Registration Statement or Final Prospectus, or
to be filed as an exhibit to the Registration Statement, which is
not described or filed as required and which absence to be so
described or filed would reasonably be expected to have a
Material Adverse Effect and the statements included in the Form
10-K for the fiscal year ended December 31, 1997, incorporated by
reference in the Final Prospectus describing any legal
proceedings or material contracts or agreements relating to the
Company fairly summarize such matters;
(v) this Agreement has been duly authorized, executed and
delivered by the Company;
(vi) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and (assuming
that they have been duly authorized, executed and delivered by
the purchasers thereunder) are valid and binding agreements of
the Company;
(vii) the Remarketing Agreement has been duly authorized,
executed and delivered by the Company and, assuming due
authorization, execution and delivery by Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, constitutes a legal, valid and
binding agreement of the Company, enforceable against the Company
in accordance with its terms (subject to applicable bankruptcy,
reorganization, insolvency, fraudulent transfer, moratorium or
other laws now or hereafter in effect relating to creditors'
rights generally and subject to general principals of equity,
including, without limitation, concepts of reasonableness, good
faith and fair dealing, regardless of whether in a proceeding at
law or in equity, and except that rights to indemnification or
contribution may be limited by Federal or State securities laws
or public policy relating thereto);
(viii) no consent, approval, authorization, order,
registration or qualification with any court or governmental
agency or body is required for the issue and sale of the
Securities or the consummation of the trans actions contemplated
herein or in any Delayed Delivery Contracts, except the
registration under the Act of the Securities, qualification of
the Indenture under the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may
be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities
by the Underwriters and such other approvals (specified in such
opinion) as have been obtained;
(ix) the execution, delivery and performance of this
Agreement, any Delayed Delivery Contracts, the Remarketing
Agreement and the Indenture, the issue and sale of the Securities
and the consummation of the transactions herein and therein
contemplated will not conflict with, result in a breach or
violation of any of the terms or provisions or constitute a
default under the Certificate of Incorporation or by-laws of the
Company or the terms of any indenture, loan agreement or other
material agreement or instrument known to such counsel
(including, but not limited to, mortgages and deeds of trust) to
which the Company or any of the Material Subsidiaries is a party
or bound or to which any of the property or assets of the Company
or any of the Material Subsidiaries is subject, except where such
breach or violation would not reasonably be expected to have a
Material Adverse Effect, or contravene any law, rule or
regulation of the United States of America or the State of New
York or the General Corporation Law of the State of Delaware or
any judgment, order or decree known to such counsel to be
applicable to the Company or any of the Material Subsidiaries of
any court, regulatory body, adminis-
trative agency, governmental body or arbitrator having
jurisdiction over the Company or any of the Material
Subsidiaries;
(x) to the best of such counsel's knowledge, neither the
Company nor any of the Material Subsidiaries is in default in the
performance or observance of any material obligation, agreement
covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement, lease or other agreement
or instrument to which it is a party or by which it or any of its
properties may be bound, except where such default would not
reasonably be expected to have a Material Adverse Effect;
(xi) the Annual Reports on Form 10-K for the fiscal years
ended December 31, 1996 and December 31, 1997, the Current
Reports on Form 8-K dated September 3, 1997, September 30, 1997
(as amended on December 15, 1997), March 18, 1998 and April 16,
1998, incorporated by reference in the Registration Statement and
the Final Prospectus, when they were filed (or, if an amendment
with respect to any such document was filed, when such amendment
was filed), complied as to form in all material respects with the
Exchange Act (except as to the financial statements and schedules
and other financial and statistical data contained or
incorporated by reference therein as to which such counsel need
express no opinion);
(xii) no holders of securities of the Company have rights to
the registration of such securities under the Registration
Statement; and
(xiii) such other legal opinions with respect to the
Securities as may be set forth in Schedule I hereto.
Such counsel shall state that the Registration Statement has
become effective under the Act; any required filing of the Basic
Prospectus, any Preliminary Final Prospectus and the Final Prospectus,
and any supplements thereto, pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b); to the
knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for
that purpose have been instituted or threatened.
Such counsel shall also state that such counsel had no reason to
believe that as of the Effective Date the Registration Statement
contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading or that as of the Closing Date the Final Prospectus
includes an untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading and the Registration Statement and the Final Prospectus as
amended or supplemented, and any further amendments and supplements
thereto made by the Company prior to the Closing Date (other than the
financial statements, including the notes thereto and related
schedules, and other financial data and accounting information
contained or
incorporated by reference therein, as to which such counsel need
express no opinion), appeared on their face to be appropriately
responsive in all material respects to the requirements of the Act and
the rules and regulations thereunder.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the State of Delaware, the State of New York or the United
States, to the extent such counsel deems proper and specifies in such
opinion, upon the opinion of other counsel of good standing whom such
counsel believes to be reliable and who are reasonably satisfactory to
counsel for the Underwriters and (B) as to matters of fact, to the
extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials. References to the Final
Prospectus in this paragraph (b) include any supplements thereto at
the Closing Date.
(c) The Company shall have furnished to the Representatives the
opinion of Cravath, Swaine & Xxxxx, counsel for the Company, dated the
Closing Date, to the effect that:
(i) based solely on a certificate from the Secretary of
State of the State of Delaware, the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with full
corporate power and authority under such laws to own its
properties and conduct its business as described in the Final
Prospectus;
(ii) the statements set forth in the Basic Prospectus and
the Final Prospectus under the captions "Description of Debt
Securities" and "Description of the MOPPRS", respectively,
insofar as such statements constitute a summary of the documents
referred to therein, constitute fair summaries of such documents.
The Securities conform in all material respects to the
description thereof contained in the Registration Statement and
Final Prospectus;
(iii) the Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization,
execution and delivery by the Trustee, constitutes a legal, valid
and binding instrument enforceable against the Company in
accordance with its terms (subject to applicable bankruptcy,
reorganization, insolvency, fraudulent transfer, moratorium or
other laws now or hereafter in effect relating to creditors'
rights generally from time to time in effect and subject to
general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether in a proceeding at law or in
equity); and the Securities have been duly authorized by the
Company and, when executed and authenticated in accordance with
the provisions of the Indenture and delivered to and paid for by
the Underwriters pursuant to this Agreement, in the case of the
Underwriters' Securities, or by the purchasers thereof pursuant
to Delayed Delivery Contracts, in the case of any Contract
Securities, will constitute legal, valid and binding obligations
of the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms
(subject to applicable bankruptcy,
reorganization, insolvency, fraudulent transfer, moratorium or
other laws now or hereafter in effect relating to creditors'
rights generally from time to time in effect and subject to
general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether in a proceeding at law or in
equity);
(iv) this Agreement has been duly authorized, executed and
delivered by the Company;
(v) the Registration Statement, at the time the Registration
Statement became effective, and the Final Prospectus, as of the
Closing Date (in each case except the financial statements and
other information of a statistical, accounting or financial
nature included therein (except the Statement of Eligibility
(Form T-1) included as an exhibit to the Registration Statement,
as to which we do not express any view), were appropriately
responsive in all material respects to the requirements of the
Act and the Trust Indenture Act;
(vi) the Remarketing Agreement has been duly authorized,
executed and delivered by the Company and, assuming due
authorization, execution and delivery by Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, constitutes a legal, valid and
binding agreement of the Company, enforceable against the Company
in accordance with its terms (subject to applicable bankruptcy,
reorganization, insolvency, fraudulent transfer, moratorium or
other laws now or hereafter in effect relating to creditors'
rights generally and subject to general principals of equity,
including, without limitation, concepts of reasonableness, good
faith and fair dealing, regardless of whether in a proceeding at
law or in equity, and except that rights to indemnification or
contribution may be limited by Federal or State securities laws
or public policy relating thereto);
(vii) no authorization, approval or other action by, and no
notice to, consent of, order of, or filing with, any United
States Federal, New York or, to the extent required under the
General Corporation Law of the State of Delaware, Delaware
governmental authority or regulatory body is required for the
consummation of the transactions contemplated by this Agreement,
except such as have been obtained under the Act or the Trust
Indenture Act and such as may be required under the blue sky laws
of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters;
(viii) the Indenture has been duly qualified under the Trust
Indenture Act; and
(ix) such other legal opinions with respect to the
Securities as may be set forth in Schedule I hereto.
Such counsel shall state that the Registration Statement has
become effective under the Act; any required filing of the Basic
Prospectus, any Preliminary Final Prospectus and the Final Prospectus,
and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the knowledge of
such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or threatened.
Such counsel shall also state that they have no reason to believe
that as of the Effective Date the Registration Statement (except the
financial statements and other information of an accounting or
financial nature included therein, or incorporated by reference
therein or omitted therefrom, and the Statement of Eligibility on Form
T-1 included as an exhibit to the Registration Statement, as to which
such counsel need express no view) contained an untrue statement of a
material fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading or that as of the Closing
Date the Final Prospectus includes an untrue statement of a material
fact or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. Such counsel shall also state that the
statements set forth under the heading "Certain United States Federal
Income Tax Considerations" in the Final Prospectus, insofar as such
statements purport to summarize certain federal income tax laws of the
United States, constitute a fair summary of the principal U.S. federal
income tax consequences of an investment in the MOPPRS.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the State of Delaware, the State of New York or the United
States, to the extent such counsel deems proper and specifies in such
opinion, upon the opinion of other counsel of good standing whom such
counsel believes to be reliable and who are reasonably satisfactory to
counsel for the Underwriters and (B) as to matters of fact, to the
extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials. References to the Final
Prospectus in this paragraph (c) include any supplements thereto at
the Closing Date.
(d) The Representatives shall have received from Shearman &
Sterling, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the issuance and sale of the
Securities, the Indenture, any Delayed Delivery Contracts, the
Registration Statement, the Final Prospectus (together with any
supplement thereto) and other related matters as the Representatives
may reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the chief financial officer of the Company, dated the
Closing Date, with respect to the matters set forth in (g) below and
to the effect that:
(i) to such person's knowledge, the representations and
warranties of the Company in this Agreement are true and correct
in all material respects on and as of the Closing Date with the
same effect as if made on
the Closing Date and the Company has complied in all material
respects with all the agreements and satisfied in all material
respects all the conditions on its part to be performed or
satisfied at or prior to the Closing Date; and
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to such person's knowledge,
threatened.
(f) At the Execution Time, KPMG Peat Marwick LLP shall have
furnished to the Representatives a letter or letters (which may refer
to letters previously delivered to one or more of the
Representatives), dated as of the Execution Time, in form and
substance satisfactory to the Representatives, confirming that they
are independent accountants within the meaning of the Act and the
Exchange Act and the respective applicable published rules and
regulations thereunder and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules and any pro forma financial
statements included or incorporated in the Registration Statement
and the Final Prospectus and reported on by them comply in form
in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related
published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; a reading of the minutes of the meetings of the
stockholders, directors and the executive, audit, compensation
and pension committees of the Company and its subsidiaries; and
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the
Company and its subsidiaries as to transactions and events
subsequent to the date of the most recent audited financial
statements in or incorporated in the Final Prospectus, nothing
came to their attention which caused them to believe that:
(1) any unaudited financial statements included or
incorporated in the Registration Statement and the Final
Prospectus do not comply in form in all material respects
with applicable accounting requirements of the Act and the
Exchange Act and with the published rules and regulations of
the Commission with respect to financial statements included
or incorporated in quarterly reports on Form 10-Q under the
Exchange Act; or said unaudited financial statements are not
in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited financial statements included or incorporated in the
Registration Statement and the Final Prospectus;
(2) with respect to the period subsequent to the date
of the most recent financial statements (other than any
capsule
information), audited or unaudited, in or incorporated in
the Regis tration Statement and the Final Prospectus, there
were any changes, at a specified date not more than five
business days prior to the date of the letter, in the
long-term debt of the Company and its subsidiaries or
capital stock of the Company or decreases in the
stockholders' equity of the Company or any other changes in
any balance sheet items as the Representatives may
reasonably request as compared with the amounts shown on the
most recent consolidated balance sheet included or
incorporated in the Registration Statement and the Final
Prospectus, or for the period from the date of the most
recent financial statements included or incorporated in the
Registration Statement and the Final Pro spectus to such
specified date there were any decreases, as compared with
the corresponding period in the preceding year or the
preceding quarter in net sales, earnings from operations,
earnings before income taxes or in total or per share
amounts of net earnings of the Company and its subsidiaries
available for common stockholders or any other income
statement items as the Representatives may reasonably
request, except in all instances for changes or decreases
set forth in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by the Representatives; or
(3) the amounts included in any unaudited "capsule"
information included or incorporated in the Registration
Statement and the Final Prospectus do not agree with the
amounts set forth in the unaudited financial statements for
the same periods or were not determined on a basis
substantially consistent with that of the corresponding
amounts in the audited financial statements included or
incorporated in the Registration Statement and the Final
Prospectus;
(iii) they have performed certain other specified procedures
as a result of which they determined that certain information of
an accounting, financial or statistical nature (which is limited
to accounting, financial or statistical information derived from
the general accounting records of the Company and its
subsidiaries) set forth in the Registration Statement and the
Final Prospectus and in Exhibit 12 to the Registration Statement,
including the information included or incorporated in Items 1, 2,
6, 7 and 11 of the Company's Annual Report on Form 10-K,
incorporated in the Registration Statement and the Prospectus,
and the information included in the "Management's Discussion and
Analysis of Financial Condition and Results of Operations"
included or incorporated in the Company's Quarterly Reports on
Form 10-Q, incorporated in the Registration Statement and the
Final Prospectus, agrees with the accounting records of the
Company and its subsidiaries, excluding any questions of legal
interpretation; and
(iv) if unaudited pro forma financial statements are
included or incorporated in the Registration Statement or the
Final Prospectus, on the basis of a reading of the unaudited pro
forma financial statements, carrying out certain specified
procedures, inquiries of certain officials of the Company and the
acquired company who have responsibility for financial and
accounting matters, and proving the arithmetic accuracy of the
application of the pro forma adjustments to the historical
amounts in the pro forma financial statements, nothing came to
their attention which caused them to believe that the pro forma
financial statements do not comply in form in all material
respects with the applicable accounting requirements of Rule
11-02 of Regulation S-X or that the pro forma adjustments have
not been properly applied to the historical amounts in the
compilation of such statements.
References to the Final Prospectus in this paragraph (f) include
any supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the
Closing Date, KPMG Peat Marwick LLP shall have furnished to the
Representatives a letter or letters, dated as of the Execution Time,
in form and substance satisfactory to the Representatives, to the
effect set forth above.
(g) (i) Neither the Company nor any of the Material Subsidiaries
shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Final
Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Final Prospectus, and (ii) since the respective dates as of which
information is given in the Final Prospectus there shall not have been
any increase in the long-term debt of the Company and its consolidated
subsidiaries in an amount in excess of $10,000,000 other than
indebtedness incurred to pay obligations under the rate lock
agreements of the Company described in the Final Prospectus or any
change in or affecting the general affairs, financial position,
stockholder's equity or results of operations of the Company and its
subsidiaries, in each case otherwise than as set forth or contemplated
in the Final Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is in your judgment so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities being delivered at
the time of purchase on the terms and in the manner contemplated in
the Final Prospectus.
(h) Subsequent to the Execution Time, there shall not have
occurred any downgrade in the rating of any securities of or
guaranteed by the Company by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g)(2) under
the Act) and no such organization shall have publicly announced that
is has under surveillance or review, with possible negative
implications, its rating of any securities of or guaranteed by the
Company.
(i) Prior to the Closing Date, the Company shall have furnished
to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
(j) The Company shall have accepted Delayed Delivery Contracts in
any case where sales of Contract Securities arranged by the
Underwriters have been approved by the Company.
(k) The Remarketing Agreement shall have been executed and
delivered.
(l) The Company shall have performed such of its obligations
under this Agreement as are to be performed by the terms hereof at or
before the time of purchase.
(m) The Company agrees to such other conditions as may be set
forth in Schedule I hereto.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and
counsel for the Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the
Closing Date by the Repre sentatives and such cancelation shall be without
liability of any party to any other party. Notice of such cancelation shall
be given to the Company in writing or by telephone or telegraph confirmed
in writing.
The documents required to be delivered by this Section 5 shall be
delivered at the office of Cravath, Swaine & Xxxxx, counsel for the
Company, at Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the
Closing Date.
6. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to
the obligations of the Underwriters set forth in Section 5 hereof is not
satisfied or because of any termination pursuant to Section 9 hereof or
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof other than
by reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally through the Representatives upon
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of one Underwriters' counsel) approved by the Representatives
that shall have been incurred by them in connection with the proposed
purchase and sale of the Securities.
7. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities (including the
reasonable cost of investigation), joint or several, to which each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter may become subject
under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement for the registration of the Securities as originally filed or in
any amendment or post-effective amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in
any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that (i) the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through the Representa tives
expressly and specifically for inclusion therein or that part of the
Registration Statement which shall constitute the Statement of Eligibility
and Qualification (Form T-1) under the Trust Indenture Act of the Trustee
and (ii) such indemnity with respect to any untrue statement or omission of
a material fact made in the Basic Prospectus or any Preliminary Final
Prospectus, or in any amendment thereof or supplement thereto, shall not
inure to the benefit of any Underwriter (or any of the directors, officers,
employees and agents of such Underwriter or any person controlling such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Securities which are the subject thereof if such
person did not receive a copy of the Final Prospectus (or the Final
Prospectus as amended or supplemented), excluding documents incorporated
therein by reference, at or prior to the confirmation of the sale of such
Securities to such person in any case where such delivery is required by
the Act and the untrue statement or omission of a material fact contained
in such Basic Prospectus or Preliminary Final Prospectus, or in such
amendment thereof or supplement thereto, was corrected in the Final
Prospectus (or the Final Prospectus as amended or supplemented). This
indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information furnished to the Company by or on behalf
of such Underwriter through the Representatives expressly and specifically
for inclusion in the documents referred to in the foregoing indemnity, and
agrees to reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party's choice at
the indemnifying party's expense to represent the indemnified party in any
action for which indemnification is sought (in which case the indemnifying
party shall not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except as set
forth below); provided, however, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the indemnifying
party's election to appoint 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 defen dants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party; provided, however, that
in any event the indemnifying party shall not be liable for the expenses of
more than one separate counsel (in addition to local counsel) in any one
action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or circumstances,
representing the indemnified parties who are parties to such action or
actions). An indemnifying party will not, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action, suit
or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or
proceeding. An indemnifying party shall not be liable under this Section 7
to any indemnified party regarding any settlement or compromise or consent
to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless
such settlement, compromise or consent is consented to by such indemnifying
party.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 7 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the
Company and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by
the Company and by the Underwriters from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and of the Underwriters in connection with the statements or
omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company shall be deemed
to be equal to the total net proceeds from the offering (before deducting
expenses), and benefits received by the Underwriters shall be deemed to be
equal to the total underwriting discounts and commissions, in each case as
set forth on the cover page of the Final Prospectus. Relative fault shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The Company and the Underwriters agree that it would not be
just and equitable if contribution were determined by pro rata allocation
or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions
of this paragraph (d), no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person who controls
an Underwriter within the meaning of either the Act or the Exchange Act and
each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who
controls the Company within the meaning of either the Act or the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms
and conditions of this paragraph (d). The obligations of the Underwriters
shall be several and not joint.
8. Default by an Underwriter. If any one or more Underwriters shall
fail on the Closing Date to purchase and pay for any of the Securities
agreed to be purchased by such Underwriter or Underwriters hereunder and
such failure to purchase shall constitute a default in the performance of
its or their obligations under this Agreement, the remaining Underwriters
shall be obligated severally to take up and pay for (in the respective
proportions which the amount of Securities set forth opposite their names
in Schedule II hereto bears to the aggregate principal amount of Securities
set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
principal amount of Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the
aggregate principal amount of Securities set forth in Schedule II hereto,
the remaining Underwriters shall have the right to purchase all, but shall
not be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter
or the Company. In the event of a default by any Underwriter as set forth
in this Section 8, the Closing Date shall be postponed for such period, not
exceeding five business days, as the Representatives shall determine in
order that the required changes in the Registration Statement and the Final
Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any
defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if prior to such time
(i) there shall have occurred a material suspension or limitation in
trading in securities generally on the New York Stock Exchange, (ii) there
shall have occurred a material suspension or limitation in trading in the
Company's securities on the New York Stock Exchange, (iii) there shall not
have occurred any downgrade in the rating of any securities of or
guaranteed by the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g)(2) under the Act) and
no such organization shall have publicly announced that is has under
surveillance or review, with possible negative implications, its rating of
any securities of or guaranteed by the Company, (iv) a banking moratorium
shall have been declared either by Federal or New York State authorities or
(v) there shall have occurred any materially adverse change in the
financial markets or any outbreak or escalation of hostilities, declaration
by the United States of a national emergency or war or other calamity or
crisis the effect of which on financial markets is such as to make it, in
the reasonable judgment of the Representatives, impracticable or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Final Prospectus (exclusive of any supplement thereto).
If this Agreement is terminated pursuant to this Section, such termination
shall be without liability of any party to any other party.
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements
of the Company or its officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or the Company
or any of the officers, directors or controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for the
Securities. The provisions of Sections 6 and 7 hereof shall survive the
termination or cancelation of this Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telegraphed and confirmed to them, at the address
specified in Schedule I hereto; or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at Five Xxxxxx Xxxxxxxx Xxxxx,
Xxxx Xxxxxxxx, XX 00000, attention of the Secretary.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto, and the officers and directors and
controlling persons referred to in Section 7 hereof, and their respective
successors, assigns, executors and administrators. No other person,
partnership, association, or corporation (including a purchaser, as such
purchaser, from any of the Underwriters) shall acquire or have any right or
obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York.
14. Business Day. For purposes of this Agreement, "business day" means
any day on which the New York Stock Exchange is open for trading.
15. Miscellaneous. On Xxxxxxxx 0, 0000, Xxxxx Bank Corporation, of
which SBC Warburg Dillon Read is an indirect wholly owned subsidiary,
announced its intention to merge with Union Bank of Switzerland. References
in this document to Swiss Bank Corporation include references to its
successor entity following completion of the merger.
References to the parties include references to their successors,
including, without limitation, an entity which assumes the rights and
obligations of the relevant party by operation of the law of the
jurisdiction of incorporation or domicile of such party.
16. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement among the Company and the several Underwriters.
Very truly yours,
CYTEC INDUSTRIES INC.,
By: /s/ X. X. Xxx
---------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and
accepted as of the date
specified in Schedule I
hereto.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Salomon Brothers Inc
SBC Warburg Dillon Read Inc.
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxx Xxxxxxx
----------------------
Name:
Title:
By:
----------------------
Name:
Title:
For themselves and the other
several Underwriters, if
any, named in Schedule II to
the foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated May 6, 1998
Registration Statement No. 333-3808
Representative(s): Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Xxxxxx Xxxxxxx & Co. Incorporated, Salomon Brothers Inc and SBC Warburg
Dillon Read Inc.
Title, Purchase Price and Description of Securities:
Title: 6.846% MandatOry Par Put Remarketed
SecuritiesSM ("MOPPRSSM") due May 11,
2025.
Principal Amount: $120,000,000.
Indenture: Indenture dated as of March 15, 1998
between Cytec Industries Inc. and PNC
Bank, National Association, as Trustee.
Interest Rate: 6.846% per annum to May 11, 2005,
commencing May 11, 1998, payable
semiannually in arrears on the dates
set forth below, to holders of record
on the preceding April 26 and October
27, as the case may be.
Interest Payment Dates: May 11 and November 11.
Remarketing Date: May 11, 2005.
Date of Maturity: May 11, 2025.
Purchase Price (include
accrued interest or
amortization, if any): 103.125%
Sinking Fund Provisions: None.
Redemption Provisions: As specified in the Prospectus
Supplement under the caption headed
"Description of the MOPPRS- Redemption"
filed with the Commission on May 6,
1998.
Authorized Denominations: $1,000 and integral multiples thereof.
Defeasance Provisions: The MOPPRS may not be defeased,
purchased or otherwise acquired by the
Company or its subsidiaries or
affiliates other than (i) at any time
prior to the Remarketing Dealer's (as
defined in the Remarketing Agreement)
election to remarket the MOPPRS, in
accordance with Sections 11(b), 11(d)
and 11(e) of the Remarketing Agreement
to be dated May 11, 1998 between the
Company and Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated (the
"Remarketing Agreement"), and (ii) at
any time after the Remarketing Dealer's
election to remarket the MOPPRS on the
Notification Date pursuant to Section
4(g) or 4(h) of the Remarketing
Agreement.
Other Provisions: The MOPPRS are Book-Entry Securities.
The MOPPRS are subject to the
Remarketing Agreement.
Closing Date, Time and Location: May 11, 1998, 9:30 a.m., at the offices
of Cravath, Swaine & Xxxxx, Worldwide
Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX.
Method of Payment for
Underwriters' Securities: Wire transfer in same-day funds.
Type of Offering: Delayed Offering.
Delayed Delivery Arrangements: None.
Additional provisions pursuant to Section 4(k): None.
Additional opinions pursuant to Section 5(b)(xiii) or 5(c)(ix): None.
Modification of items to be covered by the letter from KPMG Peat Marwick LLP
delivered pursuant to Section 5(f) at the Execution Time: None.
Additional conditions pursuant to Section 5(l): None.
SCHEDULE II
Principal Amount of
Mandatory Par Put Remarketed SecuritiesSM
due May 11, 2025
Underwriter to be Purchased
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx,.. $ 62,400,000
Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated ...... $ 19,200,000
Salomon Brothers Inc ................... $ 19,200,000
SBC Warburg Dillon Read Inc. ........... $ 19,200,000
-------------
Total ............................. $120,000,000
============
SCHEDULE III
Delayed Delivery Contract
, 19
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
World Financial Center
North Tower
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
SBC Warburg Dillon Read Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Cytec Industries
Inc. (the "Company"), and the Company agrees to sell to the undersigned, on
May [ ], 1998, (the "Delivery Date"), $ principal amount of the Company's
6.846% MandatOry Par Put Remarketed Securities due May 11, 2025 (the
"Securities") offered by the Company's Prospectus dated April 8, 1997, and
related Prospectus Supplement dated May 6, 1998, receipt of a copy of which
is hereby acknowledged, at a purchase price of [ ]% of the principal amount
thereof, plus [accrued interest] [amortization of original issue discount],
if any, thereon from [ , 19 ], to the date of payment and delivery, and on
the further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned
shall be made on or before 11:00 AM, New York City time, on the Delivery
Date to or upon the order of the Company in New York Clearing House (next
day) funds, at your office or at such other place as shall be agreed
between the Company and the undersigned, upon delivery to the undersigned
of the Securities in definitive fully registered form and in such
authorized denominations and registered in such names as the undersigned
may
request by written or telegraphic communication addressed to the Company
not less than five full business days prior to the Delivery Date. If no
request is received, the Securities will be registered in the name of the
undersigned and issued in a denomination equal to the aggregate principal
amount of Securities to be purchased by the undersigned on the Delivery
Date.
The obligation of the undersigned to take delivery of and make
payment for Securities on the Delivery Date, and the obligation of the
Company to sell and deliver Securities on the Delivery Date, shall be
subject to the conditions (and neither party shall incur any liability by
reason of the failure thereof) that (1) the purchase of Securities to be
made by the undersigned, which purchase the undersigned represents is not
prohibited on the date hereof, shall not on the Delivery Date be prohibited
under the laws of the jurisdiction to which the undersigned is subject, and
(2) the Company, on or before the Delivery Date, shall have sold to certain
underwriters (the "Underwriters") such principal amount of the Securities
as is to be sold to them pursuant to the Underwriting Agreement referred to
in the Prospectus and Prospectus Supplement mentioned above. Promptly after
completion of such sale to the Underwriters, the Company will mail or
deliver to the undersigned at its address set forth below notice to such
effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith. The obligation of
the undersigned to take delivery of and make payment for the Securities,
and the obligation of the Company to cause the Securities to be sold and
delivered, shall not be affected by the failure of any purchaser to take
delivery of and make payment for the Securities pursuant to other contracts
similar to this contract.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be
assignable by either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other
similar contracts is in the Company's sole discretion and, without limiting
the foregoing, need not be on a first come, first served basis. If this
contract is acceptable to the Company, it is required that the Company sign
the form of acceptance below and mail or deliver one of the counterparts
hereof to the undersigned at its address set forth below. This will become a
binding contract between the Company and the undersigned, as of the date
first above written, when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance
with the laws of the State of New York.
Very truly yours,
.............................................
(Name of Purchaser)
By
.........................................
Name:
Title:
.........................................
(Address)
Accepted:
CYTEC INDUSTRIES INC.,
By
.........................................
Name:
Title:
