Exhibit 1.2
WESTLAKE CHEMICAL CORPORATION
DEBT SECURITIES
FORM OF UNDERWRITING AGREEMENT
, 20
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[NAMES AND ADDRESSES OF THE UNDERWRITERS]
Ladies and Gentlemen:
1. Offering. Westlake Chemical Corporation, a Delaware corporation
(the "Company"), proposes to issue and sell to the several underwriters named in
Schedule A hereto (the "Underwriters") U.S. $ principal amount of
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its % [Senior][Subordinated] Notes due 20 (the "Offered Securities") to be
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issued under an Indenture to be dated as of , 20 (the "Indenture"),
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between the Company, the Subsidiary Guarantors (as set forth therein) and
, as Trustee. [The Offered Securities will be unconditionally
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guaranteed as to the payment of principal, premium, if any, and interest (the
"Guarantees") by the subsidiaries of the Company named in Schedule B hereto
(each a "Subsidiary Guarantor" and, collectively, the "Subsidiary Guarantors").]
As used herein, the term "Operative Documents" refers to this Agreement and the
Indenture.
The Company and the Subsidiary Guarantors have filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-3 (No. 333- ), including a form of prospectus, for the registration of
the offer and sale of certain securities, including the Offered Securities under
the Securities Act of 1933, as amended (the "1933 Act"), from time to time in
accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"). Such registration statement has been
declared effective by the Commission. Promptly after execution and delivery of
this Agreement, the Company [and the Subsidiary Guarantors] will prepare and
file a prospectus supplement relating to the Offered Securities, the terms of
the offering thereof and the other matters set forth therein, pursuant to Rule
424(b) under the 1933 Act Regulations. The final prospectus and the final
prospectus supplement relating to the Offered Securities, in the forms filed
with the Commission pursuant to Rule 424(b) under the 1933 Act Regulations for
use in connection with the offering of the Offered Securities, are collectively
referred to herein as the "Prospectus", and such registration statement in the
form in which it became effective, is hereinafter called the "Registration
Statement"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall also be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to the date of this Agreement. A
"preliminary prospectus" shall be deemed to refer to any prospectus that omitted
information to be included upon pricing in a form of prospectus filed with the
Commission pursuant to Rule 424(b) under the 1933 Act Regulations and was used
after such effectiveness and prior to the initial delivery of the Prospectus to
the Underwriters by the Company. For purposes of this Agreement, all references
to the Registration Statement, any preliminary prospectus or the Prospectus or
any amendment or supplement to any of the foregoing shall be deemed to be
identical to the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" (or other
references of like import) in the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be, prior to the date of this Agreement; and all
references in this Agreement to amendments or supplements to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to mean
and include the filing of any document under the 1934 Act which is incorporated
by reference in the Registration Statement, such preliminary prospectus or the
Prospectus, as the case may be, after the date of this Agreement.
2. Representations and Warranties of the Company [and the Subsidiary
Guarantors]. [The
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Company][Each of the Company and the Subsidiary Guarantors, jointly and
severally,] represents and warrants to, and agrees with, the several
Underwriters that:
(a) At the time the Registration Statement became effective, the
Registration Statement complied, and as of the Closing Date (as
defined hereinafter), will comply, in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations. The
Registration Statement, at the time it became effective, did not, as
of the date hereof, does not, and at the Closing Date, will not,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus, as of its date and
at the Closing Date will not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the representations
and warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by the Underwriters expressly for use in the
Registration Statement or Prospectus or to those parts of the
Registration Statement which constitute the Statements of Eligibility
and Qualification under the 1939 Act (the "Forms T-1") of
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, as trustee (the "Trustee") that are filed as exhibits to the
Registration Statement.
(b) The documents incorporated by reference in the Prospectus, at
the time they were or hereafter are filed with the Commission,
complied or, when so filed, will comply, as the case may be, in all
material respects with the requirements of the 1934 Act and the rules
and regulations thereunder (the "1934 Act Regulations"), and, when
read together and with the other information in the Prospectus, at the
time the Registration Statement became effective, as of the date of
the Prospectus and on the Closing Date, did not and will not, as of
such time or dates, as the case may be, contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were or are made, not misleading.
(c) The Offered Securities have been duly and validly authorized
by the Company and, when duly executed by the Company in accordance
with the terms of the Indenture, assuming due authentication of the
Offered Securities by the Trustee, upon delivery to the Underwriters
against payment therefor in accordance with the terms hereof, will be
validly issued and delivered, and will constitute valid and binding
obligations of the Company entitled to the benefits of the Indenture,
enforceable against the Company in accordance with their terms, except
as such enforceability may be limited by bankruptcy, fraudulent
conveyance or transfer, insolvency, reorganization, moratorium, and
other laws relating to or affecting creditors' rights generally and by
general equitable principles. The Offered Securities will conform in
all material respects to the descriptions thereof contained in the
Prospectus.
(d) [The Guarantee by each Subsidiary Guarantor has been duly and
validly authorized by such Subsidiary Guarantor and when duly endorsed
on the Offered Securities by such Subsidiary Guarantor in accordance
with the terms of the Indenture and upon the due execution,
authentication and delivery of the Offered Securities in accordance
with the Indenture against payment therefor in accordance with the
terms hereof, will constitute valid and binding obligations of such
Subsidiary Guarantor, enforceable against such Subsidiary Guarantor in
accordance with its terms, except as such enforceability may be
limited by bankruptcy, fraudulent conveyance or transfer, insolvency,
reorganization, moratorium, and other laws relating to or affecting
creditors' rights generally and by general equitable principles. The
Guarantees will conform in all material respects to the description
thereof in the Prospectus.]
(e) The Company [and each Subsidiary Guarantor] has been duly
incorporated [or formed] and is an existing corporation [or other
entity] in good standing under the laws of [the State of Delaware]
[its state of incorporation or organization], with power and authority
(corporate and other organizational) to own its properties and conduct
its business as described in the Prospectus; and the Company [and each
Subsidiary Guarantor] is duly qualified to do business as a foreign
corporation [or other entity] in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified or in good standing would not, individually
or in the aggregate, have a material adverse effect on the current or
future condition (financial or other), business, properties or results
of operations of the Company[, the Subsidiary Guarantors] and any
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[other] subsidiary of the Company, taken as a whole (a "Material
Adverse Effect"). The Company [and each of the Subsidiary Guarantors]
has all requisite power and authority (corporate and other
organizational) to enter into the Operative Documents and to
authorize, issue and sell the Offered Securities [and the Guarantees,
as the case may be,] as contemplated by this Agreement.
(f) Each subsidiary of the Company [(other than a Subsidiary
Guarantor)] has been duly incorporated or formed and is an existing
corporation or other entity in good standing under the laws of the
jurisdiction of its incorporation or organization, with power and
authority (corporate and other organizational) to own its properties
and conduct its business as described in the Prospectus; and each such
subsidiary is duly qualified to do business as a foreign corporation
or other entity in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to be so
qualified or in good standing would not, individually or in the
aggregate, have a Material Adverse Effect.
(g) The Company has an authorized capitalization as set forth in
the Prospectus. All of the issued and outstanding shares of capital
stock of the Company have been duly authorized and validly issued and
are fully paid and non-assessable. All of the issued and outstanding
shares of capital stock of each [Subsidiary Guarantor and of each
other] subsidiary of the Company has been duly authorized and validly
issued and is fully paid and nonassessable and the shares of capital
stock of each [Subsidiary Guarantor and of each other] subsidiary
owned by the Company, directly or through subsidiaries, is owned free
from liens, encumbrances and defects, except as (i) would not,
individually or in the aggregate, have a Material Adverse Effect, (ii)
may exist or arise pursuant to or in connection with the Indenture
dated as of July 31, 2003 by and among the Company, the guarantors
named therein and JPMorgan Chase Bank, as trustee, relating to the 8
3/4% senior notes due 2011, the Credit Agreement dated as of July 31,
2003 by and among the Company, certain of its subsidiaries, the
lenders party thereto and Bank of America, N.A., as agent, relating to
a $200 million senior secured revolving credit facility and the Credit
Agreement dated as of July 31, 2003 by and among the Company, certain
of its subsidiaries, the lenders party thereto and Bank of America,
N.A., as agent, relating to a senior secured term loan (collectively,
the "Debt Agreements") or (iii) disclosed in the Prospectus.
(h) The Indenture has been duly and validly authorized by the
Company and each of the Subsidiary Guarantors, and upon its execution
and delivery and, assuming due authorization, execution and delivery
by the Trustee, will constitute the valid and binding obligations of
the Company and the Subsidiary Guarantors, enforceable against the
Company and the Subsidiary Guarantors in accordance with its terms,
except as such enforceability may be limited by bankruptcy, fraudulent
conveyance or transfer, insolvency, reorganization, moratorium, and
other laws relating to or affecting creditors' rights generally and by
general equitable principles. The Indenture will conform in all
material respects to the description thereof in the Prospectus.
(i) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company [or any of
the Subsidiary Guarantors] and any person that would give rise to a
valid claim against the Company[, any Subsidiary Guarantor] or any
Underwriter for a brokerage commission, finder's fee or other like
payment in connection with the sale of the Offered Securities.
(j) Except for the Registration Rights Agreement dated August 16,
2004 between the Company and TTWF LP and except as described in the
Prospectus, there are no contracts, agreements or understandings
between the Company [or any Subsidiary Guarantor] and any person
granting such person the right to require the Company [or such
Subsidiary Guarantor] to file a registration statement under the 1933
Act with respect to any securities of the Company [or such Subsidiary
Guarantor] owned or to be owned by such person or to require the
Company [or such Subsidiary Guarantor] to include such securities in
the securities registered pursuant to the Registration Statement or in
any securities being registered pursuant to any other registration
statement filed by the Company [or such Subsidiary Guarantor] under
the 1933 Act that have not been validly waived or satisfied prior to
the date hereof.
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(k) No consent, approval, authorization, or order of, or filing
with, any governmental agency of the United States or body or any
court with jurisdiction in the United States is required to be
obtained or made by the Company [or any of the Subsidiary Guarantors]
for the consummation of the transactions contemplated by this
Agreement in connection with the sale of the Offered Securities,
except such as have been obtained and made or will be obtained and
made prior to the date hereof under the 1933 Act (provided, however, a
filing with the Commission pursuant to Rule 424(b) may be made after
the date hereof so long as such filing is made within the time period
specified in the applicable provision of such rule ) and such as may
be required under state securities or blue sky laws.
(l) The execution, delivery and performance of the Operative
Documents by the Company [and the Subsidiary Guarantors], and the
consummation of the transactions herein contemplated will not conflict
with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under, (A) any statute, any
rule, regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over the Company[, any
Subsidiary Guarantor] or any [other] subsidiary of the Company or any
of their respective properties, or (B) any agreement or instrument to
which the Company[, any Subsidiary Guarantor] or any [other]
subsidiary of the Company is a party or by which any of them is bound
or to which any of their respective properties is subject, or (C) any
of their respective charters or by-laws or other organizational
documents, other than, in the case of clauses (A) or (B) above, such
conflicts, breaches, violations or defaults that would not,
individually or in the aggregate, have a Material Adverse Effect.
(m) This Agreement has been duly authorized, executed and
delivered by the Company [and the Subsidiary Guarantors].
(n) Except as disclosed in the Prospectus, the Company[, each of
the Subsidiary Guarantors] and each of the [other] subsidiaries of the
Company has (A) good and indefeasible title to (in the case of fee
interests in real property), (B) valid leasehold interests in (in the
case of leasehold interests in real or personal property) and (C)
valid title to (in the case of all other personal property), all of
its respective properties and assets reflected in the Company's
consolidated financial statements included in the Registration
Statement and the Prospectus free and clear of all liens, encumbrances
and defects, except for such failures to have such title to or
interests in, and for such liens, encumbrances and defects, as would
not, individually or in the aggregate, have a Material Adverse Effect.
(o) The Company[, the Subsidiary Guarantors] and each [other]
subsidiary of the Company possess adequate certificates, authorities
or permits issued by appropriate governmental agencies or bodies
necessary to conduct the business now operated by them, except as
would not, individually or in the aggregate, have a Material Adverse
Effect, and have not received any notice of proceedings relating to
the revocation or modification of any such certificate, authority or
permit that, if determined adversely to the Company[, the Subsidiary
Guarantors] or any [such] subsidiary, would individually or in the
aggregate, have a Material Adverse Effect.
(p) No labor dispute with the employees of the Company[, the
Subsidiary Guarantors] or any [other] subsidiary of the Company exists
or, to the knowledge of the Company [or any of the Subsidiary
Guarantors], is imminent that would reasonably be expected to have a
Material Adverse Effect.
(q) The Company[, the Subsidiary Guarantors] and the [other]
subsidiaries of the Company own, possess or can acquire on reasonable
terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information
and other intellectual property (collectively, "intellectual property
rights") necessary to conduct the business now operated by them, or
presently employed by them, except as would not, individually or in
the aggregate, have a Material Adverse Effect, and have not received
any notice of infringement of or conflict with asserted rights of
others with respect to any intellectual property rights that, if
determined adversely to the Company[, the Subsidiary Guarantors] or
any [such] subsidiary, would individually or in the aggregate have a
Material Adverse Effect.
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(r) Except as disclosed in the Prospectus, and except for such
matters as would not, individually or in the aggregate, have a
Material Adverse Effect or be required to be disclosed in the
Prospectus by the Commission pursuant to the 1933 Act Regulations, the
Company[, the Subsidiary Guarantors] and the [other] subsidiaries of
the Company (or, to the knowledge of the Company [or the Subsidiary
Guarantors], any other entity for whose acts or omissions the Company
is [or the Subsidiary Guarantors are] or may be liable) (1) are
conducting and have conducted their businesses, operations and
facilities in compliance with Environmental Laws (as defined below);
(2) possess and maintain in full force and effect any and all permits,
licenses or registrations required under Environmental Law for the
conduct of their businesses ("Environmental Permits"); (3) have not,
pursuant to any contract, assumed responsibility to cure any currently
identified material liability under Environmental Law or to remediate
any currently identified Hazardous Substances (as defined below) spill
or release; (4) have not received any notice from a governmental
authority or any other third party alleging any violation of
Environmental Law or liability thereunder (including, without
limitation, liability as a "potentially responsible party" and/or for
costs of investigating or remediating sites containing Hazardous
Substances and/or damages to natural resources); (5) are not subject
to any pending or, to the knowledge of the Company [or the Subsidiary
Guarantors], threatened claim or other legal proceeding under any
Environmental Laws against the Company or its subsidiaries; (6) do not
have knowledge of any pending Environmental Law, or any unsatisfied
condition in an Environmental Permit, or any release of Hazardous
Substances that, individually or in the aggregate, can reasonably be
expected to require any material capital expenditures to maintain the
Company's or the subsidiaries' compliance with Environmental Law or
with their Environmental Permits; and (7) does not (A) rely on any
third party for an indemnity for, or the contractual assumption of,
any material remediation obligation or liability under Environmental
Law and (B) have reasonable cause to believe that such third party
will default in its obligation to comply with such indemnity or
contractual assumption. As used in this paragraph, "Environmental
Laws" means any and all applicable federal, state, local, and foreign
laws, statutes, ordinances, rules, regulations, requirements and
common law, or any enforceable administrative or judicial
interpretation, order, consent, decree or judgment thereof, relating
to pollution or the protection of human health or the environment,
including, without limitation, those relating to, regulating, or
imposing liability or standards of conduct concerning (i) noise or
odor, (ii) emissions, discharges, releases or threatened releases of
Hazardous Substances into ambient air, surface water, groundwater or
land, (iii) the generation, manufacture, processing, distribution,
use, treatment, storage, disposal, release, transport or handling of,
or exposure to, Hazardous Substances, (iv) the protection of wildlife
or endangered or threatened species, or (v) the investigation,
remediation or cleanup of, or exposure to, any Hazardous Substances.
As used in this paragraph, "Hazardous Substances" means pollutants,
contaminants or hazardous, dangerous or toxic substances, materials,
constituents or wastes or petroleum, petroleum products and their
breakdown constituents, or any other chemical substance regulated
under Environmental Laws.
(s) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company[, the
Subsidiary Guarantors], any [other] subsidiary of the Company or any
of their respective properties that, if determined adversely to the
Company[, the Subsidiary Guarantors] or any [other] subsidiary of the
Company, would individually or in the aggregate have a Material
Adverse Effect, or would materially and adversely affect the ability
of the Company [or the Subsidiary Guarantors] to perform its [their
respective] obligations under the Operative Documents, or which are
otherwise material in the context of the sale of the Offered
Securities; and no such actions, suits or proceedings are threatened
or, to the Company's [or any Subsidiary Guarantor's] knowledge,
contemplated.
(t) The financial statements included in the Registration
Statement and the Prospectus present fairly the financial position of
the Company and its consolidated subsidiaries as of the dates shown
and their results of operations and cash flows for the periods shown,
and such financial statements have been prepared in conformity with
the generally accepted accounting principles in the United States
("GAAP") applied on a consistent basis; all non-GAAP financial
information included in the Registration Statement complies with the
requirements of Item 10 of Regulation S-K under the 1933 Act.
(u) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus there
has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business,
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properties or results of operations of the Company[, the Subsidiary
Guarantors] and the [other] subsidiaries of the Company, taken as a
whole, and, except as disclosed in or contemplated by the Prospectus,
there has been no dividend or distribution of any kind declared, paid
or made by the Company [or each of the Subsidiary Guarantors] on any
class of its capital stock.
(v) As of the date hereof, the Company is subject to the
reporting requirements of Section 13 of the 1934 Act and files reports
with the Commission on ▇▇▇▇▇.
(w) The Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940.
(x) The Company[, the Subsidiary Guarantors] and the [other]
subsidiaries of the Company have filed all federal, state and local
income and franchise tax returns required to be filed through the date
hereof, except where the failure to so file such returns would not,
individually or in the aggregate, have a Material Adverse Effect, and
have paid all taxes due thereon, and other than tax deficiencies which
the Company[, any Subsidiary Guarantor] or any [other] subsidiary of
the Company is contesting in good faith and for which adequate
reserves have been provided in accordance with GAAP, there is no tax
deficiency that has been asserted against the Company[, any Subsidiary
Guarantor] or any [other] subsidiary of the Company that would,
individually or in the aggregate, have a Material Adverse Effect.
(y) Prior to the date hereof, neither the Company nor any of its
affiliates has taken any action which is designed to or which has
constituted or which might have been expected to cause or result in
unlawful stabilization or manipulation of the price of any security of
the Company in connection with the offering of the Offered Securities.
(z) PricewaterhouseCoopers LLP who have certified certain
financial statements of the Company and its subsidiaries are an
independent registered public accounting firm as contemplated by the
1933 Act and the 1933 Act Regulations.
(aa) The Company[, the Subsidiary Guarantors] and the [other]
subsidiaries of the Company maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or
specific authorization and (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with GAAP
and to maintain accountability for assets.
(bb) The Company[, the Subsidiary Guarantors] and the [other]
subsidiaries of the Company maintain disclosure controls and
procedures (as defined in Rule 13a-14 of the 1934 Act Regulations)
designed to ensure that information required to be disclosed by the
Company, including its consolidated subsidiaries, in the reports that
it files or submits under the 1934 Act is recorded, processed,
summarized and reported in accordance with the 1934 Act Regulations.
The Company has carried out evaluations, under the supervision and
with the participation of the Company's management, of the
effectiveness of the design and operation of the Company's disclosure
controls and procedures in accordance with Rule 13a-15 of the 1934 Act
Regulations.
(cc) Neither the Company nor any of its subsidiaries nor any
agent thereof acting on the behalf of them has taken, and none of them
will take, any action that might cause this Agreement or the issuance
or sale of the Offered Securities to violate Regulation T, Regulation
U or Regulation X of the Board of Governors of the Federal Reserve
System.
(dd) No "nationally recognized statistical rating organization"
as such term is defined for purposes of Rule 436(g)(2) of the 1933 Act
Regulations (i) has imposed (or has informed the Company [or any
Subsidiary Guarantor] that it is considering imposing) any condition
(financial or otherwise) on the Company's [or any Subsidiary
Guarantor's] retaining any rating assigned to the Company [or any
Subsidiary Guarantor] or any securities of the Company [or any
Subsidiary Guarantor] or (ii) has indicated
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to the Company [or any Subsidiary Guarantor] that it is considering
(a) the downgrading, suspension, or withdrawal of, or any review for a
possible change that does not indicate the direction of the possible
change in, any rating so assigned or (b) any change in the outlook for
any rating of the Company[, any Subsidiary Guarantor] or any
securities of the Company [or any Subsidiary Guarantor].
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company [and the Subsidiary
Guarantors] agrees to sell to the Underwriters, and the Underwriters agree,
severally and not jointly, to purchase from the Company [and the Subsidiary
Guarantors], at a purchase price of % of the principal amount thereof plus
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accrued interest from , 20 to the Closing Date the respective
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principal amounts of the Offered Securities[, together with the related
Guarantees,] set forth opposite the names of the several Underwriters in
Schedule A hereto.
The Company will deliver against payment of the purchase price the
Offered Securities [and the Guarantees] in the form of one or more permanent
global securities in definitive form (the "Global Securities") deposited with
the Trustee as custodian for The Depository Trust Company ("DTC") and registered
in the name of Cede & Co., as nominee for DTC. Interests in any permanent Global
Securities will be held only in book-entry form through DTC, except in the
limited circumstances described in the Prospectus. Payment for the Offered
Securities shall be made by the Underwriters in Federal (same day) funds by wire
transfer to an account at a bank reasonably acceptable to the Underwriters
specified by the Company, at 9:00 A.M., New York time, on , 20 , or
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at such other time not later than seven full business days thereafter as the
Underwriters and the Company determine, such time being herein referred to as
the "Closing Date", against delivery to the Trustee as custodian for DTC of the
Global Securities representing all of the Offered Securities. The form of Global
Securities will be made available for checking at the office of ▇▇▇▇▇ ▇▇▇▇▇
L.L.P., One Shell Plaza, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ at least 24
hours prior to the Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company [and the Subsidiary Guarantors].
[The Company][Each of the Company and the Subsidiary Guarantors, jointly and
severally,] agrees with the several Underwriters that:
(a) At any time when a prospectus relating to the Offered
Securities is required to be delivered under the 1933 Act, the Company
[and the Subsidiary Guarantors] will not file or make any amendment to
the Registration Statement or any supplement to the Prospectus (except
for periodic or current reports filed under the ▇▇▇▇ ▇▇▇) unless the
Company has [and the Subsidiary Guarantors have] furnished the
Underwriters a copy for its review prior to filing and given the
Underwriters a reasonable opportunity to comment on any such proposed
amendment or supplement. The Underwriters shall make its responses
thereto, if any, promptly. Immediately following the execution of this
Agreement, the Company [and the Subsidiary Guarantors] will prepare a
prospectus supplement, in form approved by the Underwriters, setting
forth the number of shares of Offered Securities to be sold, the
Underwriters' names, the price at which the Offered Securities are to
be purchased by the Underwriters from the Company [and the Subsidiary
Guarantors], the initial offering price, the selling concession and
reallowance, if any, and such other information as the Underwriters
and the Company [and the Subsidiary Guarantors] deem appropriate in
connection with the offering of the Offered Securities. The Company
[and the Subsidiary Guarantors] will promptly cause the Prospectus to
be filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations in the manner and within the time period prescribed by
such rule and will provide evidence satisfactory to the Underwriters
of such filing. The Company [and the Subsidiary Guarantors] will
promptly advise the Underwriters (i) at any time when a prospectus
relating to the Offered Securities is required to be delivered under
the 1933 Act, when any post-effective amendment to the Registration
Statement shall have been filed or become effective, (ii) of any
request by the Commission for any post-effective amendment of the
Registration Statement or supplement to the Prospectus or for any
additional information, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or the institution or threatening by direct communication with the
Company [or the Subsidiary Guarantors] of any proceeding for that
purpose, and (iv) of the receipt by the Company [or the Subsidiary
Guarantors] of any notification with respect to the suspension of the
qualification of the Offered
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Securities for sale in any jurisdiction or the initiation or
threatening by direct communication with the Company [or the
Subsidiary Guarantors] of any proceeding for such purpose. The Company
[and the Subsidiary Guarantors] will promptly effect the filing of the
Prospectus necessary pursuant to Rule 424(b) of the 1933 Act
Regulations and will take such steps as it deems [they deem] necessary
to ascertain promptly whether the Prospectus transmitted for filing
under Rule 424(b) was received for filing by the Commission and, in
the event that it was not, it [they] will promptly file the
Prospectus. The Company [and the Subsidiary Guarantors] will use its
[their] reasonable best efforts to prevent the issuance of any stop
order suspending the effectiveness of the Registration Statement and,
if issued, to obtain as soon as possible the withdrawal thereof.
(b) If at any time when a prospectus relating to the Offered
Securities is required to be delivered under the 1933 Act, any event
occurs as a result of which the Prospectus would include any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
shall be necessary to amend the Registration Statement or to
supplement the Prospectus to comply with the 1933 Act or the 1934 Act,
or the 1933 Act Regulations or the 1934 Act Regulations, the Company
[and the Subsidiary Guarantors] promptly will (i) notify the
Underwriters, (ii) prepare and file with the Commission, subject to
the first sentence of paragraph (a) of this Section 5, an amendment or
supplement which will correct such statement or omission or effect
such compliance, and (iii) supply any supplemented Prospectus to the
Underwriters in such quantities as the Underwriters may reasonably
request.
(c) During the period when a prospectus relating to the Offered
Securities is required to be delivered under the 1933 Act, (i) the
Company will file promptly all documents required to be filed with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934
Act and will furnish to the Underwriters copies of such documents,
(ii) on or prior to the date on which the Company makes any
announcement to the general public concerning earnings or concerning
any other event which is required to be described, or which the
Company proposes to describe, in a document filed pursuant to the 1934
Act, the Company will furnish to the Underwriters the information
contained or to be contained in such announcement or document and
(iii) the Company will furnish to the Underwriters copies of all other
material press releases or announcements to the general public.
(d) As soon as practicable, but not later than 90 days after the
close of the period covered by the earnings statement, the Company
will make generally available to its security holders and to the
Underwriters an earnings statement or statements of the Company and
its subsidiaries which will satisfy the provisions of Section 11(a) of
the 1933 Act and Rule 158 of the 1933 Act Regulations.
(e) So long as the Underwriters are required to deliver a
prospectus in connection with sales of the Offered Securities, the
Company will furnish to the Underwriters and their counsel, without
charge, such copies of the Registration Statement (including exhibits
thereto) and Prospectus as the Underwriters may reasonably request.
(f) The Company [and the Subsidiary Guarantors] will use its
[their] reasonable best efforts to arrange for the qualification of
the Offered Securities [and the Guarantees] for sale under the laws of
such jurisdictions as the Underwriters reasonably request and will
continue such qualifications in effect so long as required for the
distribution of the Offered Securities, provided that the Company [and
the Subsidiary Guarantors] shall not be required to qualify as a
foreign corporation [or other entity] or to file a general consent to
service of process in any jurisdiction.
(g) For a period of 30 days after the date of the Closing Date,
the Company [and each of the Subsidiary Guarantors] will not offer,
sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any United States dollar-denominated debt securities
issued or guaranteed by the Company [or any Subsidiary Guarantor] and
having a maturity of more than one year from the date of issue, or
publicly disclose the intention to make any such offer, sale,
contract, pledge or disposition, without the prior written consent of
the Underwriters.
8
(h) [The Company][Each of the Company and the Subsidiary
Guarantors jointly and severally] agrees with the several Underwriters
to pay all expenses incident to the performance of its obligations
under this Agreement (including, without limitation, fees of the
Company's [and the Subsidiary Guarantors'] counsel and accounting
fees), for any filing fees and other expenses (including fees and
disbursements of counsel) in connection with qualification of the
Offered Securities [and the Guarantees] for sale under the laws of
such jurisdictions as the Underwriters designate and the printing of
memoranda relating thereto, for any travel expenses of the Company's
officers and employees and any other expenses of the Company [and the
Subsidiary Guarantors] in connection with attending or hosting
meetings with prospective purchasers of the Offered Securities and for
expenses incurred in distributing preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto) to the
Underwriters.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Offered Securities will
be subject to the accuracy of the representations and warranties on the part of
the Company [and the Subsidiary Guarantors] herein, to the accuracy of the
statements of officers of the Company [and the Subsidiary Guarantors] made
pursuant to the provisions hereof, to the performance by the Company of its [and
the Subsidiary Guarantors of their respective] obligations hereunder and to the
following additional conditions precedent:
(a) The Underwriters shall have received a letter, dated the date
hereof containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus.
(b) The Prospectus shall have been filed with the Commission in
accordance with the 1933 Act Regulations and Section 5(a) of this
Agreement. Prior to 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, to the
knowledge of Company [or any of the Subsidiary Guarantors] or the
Underwriters, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or
event involving a prospective change, in the condition (financial or
other), business, properties or results of operations of the Company[,
the Subsidiary Guarantors] and its [other] subsidiaries, taken as a
whole, which, in the reasonable judgment of a majority in interest of
the Underwriters, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Offered Securities; (ii) any downgrading
in the rating of any debt securities of the Company by any "nationally
recognized statistical rating organization" (as defined for purposes
of Rule 436(g) of the 1933 Act Regulations), or any public
announcement that any such organization has under surveillance or
review its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and
no implication of a possible downgrading, of such rating); (iii) any
change in U.S. or international financial, political or economic
conditions or currency exchange rates or exchange controls as would,
in the reasonable judgment of a majority in interest of the
Underwriters, be likely to prejudice materially the success of the
proposed issue, sale or distribution of the Offered Securities,
whether in the primary market or in respect of dealings in the
secondary market; (iv) any material suspension or material limitation
of trading in securities generally on the New York Stock Exchange, or
any setting of minimum prices for trading on such exchange; (v) any
suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market; (vi) any banking moratorium
declared by U.S. Federal or New York authorities; (vii) any major
disruption of settlements of securities or clearance services in the
United States or (viii) any attack on, outbreak or escalation of
hostilities or act of terrorism involving the United States, any
declaration of war by Congress or any other national or international
calamity or emergency if, in the reasonable judgment of a majority in
interest of the Underwriters, the effect of any such attack, outbreak,
escalation, act, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of, delivery and payment for the Offered
Securities.
9
(d) The Underwriters shall have received an opinion, dated the Closing
Date, of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Company [and the Subsidiary
Guarantors], to the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus;
(ii) The Company [and each Subsidiary Guarantor] has the
requisite corporate [or limited partnership] power and authority (A)
to enter into the Operative Documents and (B) to authorize, issue and
sell the Offered Securities [and the Guarantees, as the case may be,]
as contemplated by this Agreement;
(iii) The Offered Securities have been duly authorized by the
Company and, when executed, issued and authenticated in accordance
with the terms of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms hereof, (A) will be the
valid and legally binding obligations of the Company, enforceable
against the Company in accordance with their terms except as such
enforceability may be limited by bankruptcy, fraudulent conveyance or
transfer, insolvency, reorganization, moratorium and other laws
relating to or affecting creditors' rights generally and by general
equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and (B) will conform
in all material respects to the description thereof in the Prospectus;
(iv) [The Guarantee of each Subsidiary Guarantor has been duly
authorized by such Subsidiary Guarantor. When the Guarantees have been
duly executed by the Subsidiary Guarantors and the Offered Securities
on which such Guarantees have been endorsed have been duly executed by
the Company and authenticated by the Trustee in accordance with the
terms of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms hereof, the Guarantees (A)
will be valid and legally binding obligations of the Subsidiary
Guarantors, enforceable against each of the Subsidiary Guarantors in
accordance with their respective terms except as such enforceability
may be limited by bankruptcy, fraudulent conveyance or transfer,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and by general equitable
principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and (B) will conform in all
material respects to the description thereof in the Prospectus;]
(v) The Indenture has been duly authorized, executed and
delivered by the Company [and each of the Subsidiary Guarantors] and,
assuming the due authorization, execution and delivery thereof by the
Trustee, is a valid and legally binding obligation of the Company [and
each of the Subsidiary Guarantors], enforceable against the Company
[and each of the Subsidiary Guarantors] in accordance with its terms
except as such enforceability may be limited by bankruptcy, fraudulent
conveyance or transfer, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights generally and by
general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(vi) The Indenture conforms in all material respects to the
description thereof in the Prospectus;
(vii) Except as described in the Prospectus, there are no
contracts, agreements or understandings known to such counsel between
the Company [or any Subsidiary Guarantor] and any person granting such
person the right to require the Company [or such Subsidiary Guarantor]
to file a registration statement under the 1933 Act with respect to
any securities of the Company [or such Subsidiary Guarantor] owned or
to be owned by such person or to require the Company [or such
Subsidiary Guarantor] to include such securities in the securities
registered pursuant to the Registration Statement or in any securities
being registered pursuant to any other registration statement filed by
the Company [or such Subsidiary Guarantor] under the 1933 Act that
have not been validly waived or satisfied prior to the date hereof;
10
(viii) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by the Company [or any Subsidiary Guarantor] for the
consummation of the transactions contemplated by the Operative
Documents in connection with the sale of the Offered Securities,
except such as have been obtained and made under the 1933 Act, such
consents, approvals or filings as may be required by or with the NASD
(as to which such counsel need express no opinion) and such as may be
required under state securities or blue sky laws (as to which such
counsel need express no opinion);
(ix) The execution, delivery and performance of the Operative
Documents and the sale of the Offered Securities [and the Guarantees,
in each case by the Company and the Subsidiary Guarantors,] will not
conflict with or result in a breach or violation of any of the terms
and provisions of, or constitute a default under, (A) any statute,
rule or regulation of, or order of any governmental agency or body or
any court having jurisdiction in, the United States, the State of
Texas or the State of New York, and the Delaware General Corporation
Law (provided, however, that such counsel need express no opinion with
respect to compliance with any state securities or antifraud law, rule
or regulation), (B) any agreement or instrument listed as an exhibit
to the most recently filed Annual Report on Form 10-K of the Company
(the "Material Agreements"), or (C) the charter or by-laws of the
Company, other than, in the case of clauses (A) or (B) above, such
conflicts, breaches, violations or defaults that would not,
individually or in the aggregate, have a Material Adverse Effect;
(x) This Agreement has been duly authorized, executed and
delivered by the Company [and each Subsidiary Guarantor];
(xi) The Registration Statement was declared effective under the
1933 Act as of the date and time specified in such opinion, the
Prospectus was filed with the Commission pursuant to the subparagraph
of Rule 424(b) specified in such opinion, and, to the best of the
knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement or any part thereof has been issued and
no proceedings for that purpose have been instituted or are pending or
contemplated under the 1933 Act, and the Registration Statement and
the Prospectus (other than the financial statements and schedules,
including the notes thereto, the auditors' reports thereon,
management's report on internal control over financial reporting, if
any, and the other financial, numerical and accounting information
included therein, or omitted therefrom, as to which such counsel need
express no opinion), and each amendment or supplement thereto, as of
their respective effective or issue dates, complied as to form in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations; and
(xii) The documents incorporated by reference in the Prospectus
(other than the financial statements and schedules, including the
notes thereto, the auditors' reports thereon, management's report on
internal control over financial reporting, if any, and the other
financial, numerical and accounting information included therein, or
omitted therefrom, as to which such counsel need express no opinion),
at the time they were filed with the Commission, appear on their faces
to comply as to form in all material respects with the requirements of
the 1934 Act and the 1934 Act Regulations.
Such counsel shall also include, in a separate paragraph of its
opinion, statements to the following effect: such counsel has
participated in conferences with officers and other representatives of
the Company [and the Subsidiary Guarantors], with representatives of
the independent accountants of the Company [and the Subsidiary
Guarantors], with representatives of and counsel for the Underwriters,
at which the contents of the Registration Statement and the Prospectus
were discussed, and although such counsel did not independently verify
such information, and is not passing upon and does not assume any
responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or Prospectus
(except to the extent set forth in paragraphs (iii), (iv) and (vi)
above), on the basis of the foregoing (relying as to materiality to a
large extent upon officers and other representatives of the Company
11
and representatives of the Underwriters), no facts have come to such
counsel's attention that lead such counsel to believe that (A) the
Registration Statement (other than the financial statements and
schedules, including the notes thereto, the auditors' reports thereon,
management's report on internal control over financial reporting, if
any, and the other financial, numerical and accounting information
included therein or omitted therefrom, as to which such counsel has
not been asked to comment) as of its effective date or as of the
Closing Date included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein not misleading, and (B) the Prospectus or any
amendments thereto (other than the financial statements and schedules,
including the notes thereto, the auditors' reports thereon and
management's report on internal control over financial reporting, if
any, and the other financial, numerical and accounting information
included therein or omitted therefrom, as to which such counsel has
not been asked to comment) as of its effective date or as of the
Closing Date included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made not misleading.
(e) The Underwriters shall have received an opinion, dated the Closing
Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President and General Counsel of the Company, to
the effect that:
(i) Each [Subsidiary Guarantor and each other] subsidiary of the
Company [listed on Exhibit A hereto] has been duly incorporated or
formed and is an existing corporation or other entity in good standing
under the laws of the jurisdiction of its incorporation or
organization, with power and authority (corporate and other
organizational) to own its properties and conduct its business as
described in the Prospectus; and each of the Company[, the Subsidiary
Guarantors] and the [other] subsidiaries of the Company [listed on
Exhibit A hereto] is duly qualified to do business as a foreign
corporation or other entity in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified or in good standing would not, individually
or in the aggregate, have a Material Adverse Effect;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus; all of the issued and outstanding shares of capital
stock of the Company have been duly authorized and validly issued and
are fully paid and non-assessable; all of the issued and outstanding
shares of capital stock of each [Subsidiary Guarantor and of each
other] subsidiary of the Company has been duly authorized and validly
issued and are fully paid and nonassessable; and the shares of capital
stock of each [Subsidiary Guarantor and of each other] subsidiary
owned by the Company, directly or through subsidiaries, is owned free
from liens, encumbrances and defects, except as (i) would not,
individually or in the aggregate, have a Material Adverse Effect, (ii)
may exist or arise pursuant to or in connection with the Debt
Agreements or (iii) disclosed in the Prospectus;
(iii) To such counsel's knowledge, except as disclosed in the
Prospectus, there are no pending actions, suits or proceedings against
or affecting the Company, any of its subsidiaries or any of their
respective properties that, if determined adversely to the Company or
any of its subsidiaries, would individually or in the aggregate have a
Material Adverse Effect, or would materially and adversely affect the
ability of the Company [or any Subsidiary Guarantor] to perform its
obligations under the Operative Documents, or which would otherwise be
material in the context of the sale of the Offered Securities; and to
such counsel's knowledge, no such actions, suits or proceedings are
threatened or contemplated;
(iv) The Company is duly qualified to do business as a foreign
corporation in good standing in all jurisdictions in which its
ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to be so qualified or in
good standing would not, individually or in the aggregate, have a
Material Adverse Effect; and
(v) The execution, delivery and performance of the Operative
Documents will not result in (A) a breach or violation of any of the
terms and provisions of, or constitute a default under, the charter or
by-laws or other organizational documents of [any Subsidiary Guarantor
or]
12
any [other] subsidiary of the Company, or (B) any agreement or instrument
to which the Company[, any Subsidiary Guarantor] or any [other] subsidiary
of the Company is a party or by which any of them is bound or to which any
of their respective properties is subject (excluding the Material
Agreements, as to which such counsel need express no opinion), other than,
in the case of clause (B) above, such conflicts, breaches, violations or
defaults that would not, individually or in the aggregate, have a Material
Adverse Effect.
Such counsel shall also include, in a separate paragraph of its opinion,
statements to the following effect: such counsel has participated in conferences
with officers and other representatives of the Company [and the Subsidiary
Guarantors], with representatives of the independent accountants of the Company
[and the Subsidiary Guarantors], with representatives of and counsel for the
Underwriters, at which the contents of the Registration Statement and the
Prospectus were discussed, and although such counsel did not independently
verify such information, and is not passing upon and does not assume any
responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement or Prospectus or any amendment thereto,
on the basis of the foregoing (relying as to materiality to a large extent upon
officers and other representatives of the Company and representatives of the
Underwriters), no facts have come to such counsel's attention that lead such
counsel to believe that (A) the Registration Statement (other than the financial
statements and schedules, including the notes thereto, the auditors' reports
thereon, management's report on internal control over financial reporting, if
any, and the other financial, numerical and accounting information included
therein or omitted therefrom, as to which such counsel has not been asked to
comment) as of its effective date or as of the Closing Date included an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein not misleading, and (B) the Prospectus or
any amendment thereto (other than the financial statements and schedules,
including the notes thereto, the auditors' reports thereon, management's report
on internal control over financial reporting, if any, and the other financial,
numerical and accounting information included therein or omitted therefrom, as
to which such counsel has not been asked to comment) as of its effective date or
as of the Closing Date included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(f) The Underwriters shall have received from , counsel
-----------------
for the Underwriters, such opinion or opinions, dated the Closing Date, with
respect to the incorporation of the Company [and certain Subsidiary Guarantors],
the validity of the Offered Securities delivered on the Closing Date, the
Registration Statements, the Prospectus and other related matters as the
Underwriters may require, and the Company [and the Subsidiary Guarantors] shall
have furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(g) The Underwriters shall have received a certificate, dated the Closing
Date, of the President or any Vice President and a principal financial or
accounting officer of the Company [and on behalf of each Subsidiary Guarantor]
in which such officers, to the best of their knowledge after reasonable
investigation, shall state that: the representations and warranties of the
Company [and each Subsidiary Guarantor] in this Agreement are true and correct;
the Company [and each Subsidiary Guarantor] has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder at
or prior to the Closing Date; no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission; and, subsequent to the
date of the most recent financial statements in the Prospectus, there has been
no material adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries, taken
as a whole, except as set forth in the Prospectus or as described in such
certificate.
(h) The Underwriters shall have received a letter, dated the Closing Date,
of PricewaterhouseCoopers LLP which meets the requirements of subsection (a) of
this Section, except that the specified date referred to in such subsection will
be a date not more than three days prior to the Closing Date for the purposes of
this subsection.
13
The Company [and each Subsidiary Guarantor] will furnish the Underwriters with
such conformed copies of such opinions, certificates, letters and documents as
the Underwriters reasonably request. The Underwriters may in their discretion
waive compliance with any conditions to the obligations of the Underwriters
hereunder.
7. Indemnification and Contribution. (a) The Company [and each Subsidiary
Guarantor] will[, jointly and severally,] indemnify and hold harmless each
Underwriter, its partners, members, directors and officers and each person, if
any who controls such Underwriter within the meaning of Section 15 of the 1933
Act, against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the 1933 Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
[neither the Company nor any Subsidiary Guarantor will] [the Company will not]
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the information described as such in subsection (b) below; and provided,
further, that with respect to any untrue statement or alleged untrue statement
in or omission or alleged omission from any preliminary prospectus the indemnity
agreement contained in this subsection (a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased the Offered Securities concerned, to the extent that a
prospectus relating to such Offered Securities was required to be delivered by
such Underwriter under the 1933 Act in connection with such purchase and any
such loss, claim, damage or liability of such Underwriter results from the fact
that there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person, a copy of
the Prospectus if the Company [or the Subsidiary Guarantors] had previously
furnished copies thereof to such Underwriter.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, [its] [each Subsidiary Guarantor and their
respective] directors and officers and each person, if any, who controls
the Company [or any Subsidiary Guarantor] within the meaning of Section 15
of the 1933 Act, against any losses, claims, damages or liabilities to
which the Company [or any Subsidiary Guarantor] may become subject, under
the 1933 Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus, or arise out
of or are based upon the omission or the alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company by such Underwriter
specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Company [or any Subsidiary Guarantor]
in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any Underwriter consists
of the following information in the Prospectus furnished on behalf of each
Underwriter: [list applicable sentences and paragraphs].
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against an indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the failure to notify the indemnifying party
shall not relieve it from any liability that it may have under subsection
(a) or (b) above except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or defenses) by
such failure; and provided further that the failure to notify the
indemnifying party shall not relieve it from any liability that it may have
to an indemnified party otherwise than under subsection (a) or (b) above,
except to the extent that it has been
14
materially prejudiced (through the forfeiture of substantive rights and
defenses) by such failure. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of
any pending or threatened action in respect of which any indemnified party
is or could have been a party and indemnity could have been sought
hereunder by such indemnified party unless such settlement (i) includes an
unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not include
a statement as to, or an admission of, fault, culpability or a failure to
act by or on behalf of an indemnified party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a)
or (b) above, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company [and the Subsidiary Guarantors] on the one hand and
the Underwriters on the other from the offering of the Offered Securities
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative
fault of the Company [and the Subsidiary Guarantors] on the one hand and
the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits
received by the Company [and the Subsidiary Guarantors] on the one hand and
the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses)
received by the Company [and the Subsidiary Guarantors] bear to the total
underwriting discounts and commissions received by the Underwriters. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company[, any Subsidiary Guarantor] or the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Offered Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇)
shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company [and each Subsidiary Guarantor]
under this Section shall be in addition to any liability which the Company
[and each Subsidiary Guarantor] may otherwise have and shall extend, upon
the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the 1933 Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each director of the Company [and the
Subsidiary Guarantors], to each officer of the Company [and the Subsidiary
Guarantors] who has signed the Registration Statement and to each person,
if any, who controls the Company [or any Subsidiary Guarantor] within the
meaning of the 1933 Act.
15
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder and the
aggregate principal amount of the Offered Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed
10% of the total principal amount of the Offered Securities that the
Underwriters are obligated to purchase on the Closing Date, the
Underwriters may make arrangements satisfactory to the Company for the
purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by the Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to
their respective commitments hereunder, to purchase the Offered Securities
that such defaulting Underwriters agreed but failed to purchase on the
Closing Date. If any Underwriter or Underwriters so default and the
aggregate principal amount of the Offered Securities with respect to which
such default or defaults occur exceeds 10% of the total principal amount of
the Offered Securities that the Underwriters are obligated to purchase on
the Closing Date and arrangements satisfactory to the Underwriters and the
Company for the purchase of such Offered Securities by other persons are
not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter or the
Company, except as provided in Section 9. As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under
this Section. Nothing herein will relieve a defaulting Underwriter from
liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements
of the Company[, the Subsidiary Guarantors] or [its] [their respective]
officers and of the several Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company[, the Subsidiary Guarantors] or any of
[its] [their] respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the
Offered Securities. If this Agreement is terminated pursuant to Section 8
or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company [and the Subsidiary
Guarantors] shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5 and the respective obligations of
the Company[, the Subsidiary Guarantors] and the Underwriters pursuant to
Section 7 shall remain in effect, and if any Offered Securities have been
purchased hereunder, the representations and warranties in Section 2 and
all obligations under Section 5 shall also remain in effect. If the
purchase of the Offered Securities by the Underwriters is not consummated
for any reason other than solely because of the termination of this
Agreement pursuant to Section 8 or the occurrence of any event specified in
clause (iii), (iv), (vi), (vii) or (viii) of Section 6(c), the Company [and
the Subsidiary Guarantors] will reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Offered
Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or faxed and confirmed
to the Underwriters, c/o , , ,
--------------- --------------- ---------------
Attention: (fax: ( ) - ), or, if sent to the Company
----------------- -- -- --
[or a Subsidiary Guarantor], will be mailed, delivered or faxed and
confirmed to it at ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
Attention: General Counsel (fax (▇▇▇) ▇▇▇-▇▇▇▇); provided, however, that
any notice to an Underwriter pursuant to Section 7 will be mailed,
delivered or faxed and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7,
and no other person will have any right or obligation hereunder.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, without regard to
principles of conflicts of laws.
16
If the foregoing is in accordance with the Underwriters' understanding of
our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company[, the
Subsidiary Guarantors] and the several Underwriters in accordance with its
terms.
Very truly yours,
Westlake Chemical Corporation
By
------------------------------------
Name:
Title:
[Geismar Holdings, Inc.
Geismar Vinyls Company LP,
by GVGP, Inc., its general partner
GVGP, Inc.
North American Bristol Corporation
North American Pipe Corporation
North American Profiles, Inc.
Van Buren Pipe Corporation
Westech Building Products, Inc.
Westlake Chemical Holdings, Inc.
Westlake Chemical Investments, Inc.
Westlake Chemical Manufacturing, Inc.
Westlake Chemical Products, Inc.
Westlake Development Corporation
Westlake International Corporation
Westlake Management Services, Inc.
Westlake Olefins Corporation
Westlake Petrochemicals LP,
by Westlake Chemical Investments, Inc.,
its general partner
Westlake Polymers LP,
by Westlake Chemical Investments, Inc.,
its general partner
Westlake PVC Corporation
Westlake Resources Corporation
Westlake Styrene LP,
by Westlake Chemical Holdings, Inc.,
its general partner
Westlake Vinyl Corporation
Westlake Vinyls, Inc.
WPT LP,
by Westlake Chemical Holdings, Inc.,
its general partner
By
---------------------------------------
Name:
Title:]
17
The foregoing Underwriting Agreement is hereby confirmed and accepted as of
the date first above written.
[NAME OF UNDERWRITERS]
By [NAME OF UNDERWRITERS]
By
--------------------------------
Name:
Title:
18
SCHEDULE A
Principal Amount of
Underwriter Offered Securities
----------- -------------------
$
$
$
$
$
$
---
Total... $
===
[SCHEDULE B
SUBSIDIARY GUARANTORS
Geismar Holdings, Inc.
Geismar Vinyls Company LP
GVGP, Inc.
North American Bristol Corporation
North American Pipe Corporation
North American Profiles, Inc.
Van Buren Pipe Corporation
Westech Building Products, Inc.
Westlake Chemical Holdings, Inc.
Westlake Chemical Investments, Inc.
Westlake Chemical Manufacturing, Inc.
Westlake Chemical Products, Inc.
Westlake Development Corporation
Westlake international Corporation
Westlake Management Services, Inc.
Westlake Olefins Corporation
Westlake Petrochemicals ▇▇
▇▇▇▇▇▇▇▇ Polymers ▇▇
▇▇▇▇▇▇▇▇ PVC Corporation
Westlake Resources Corporation
Westlake Styrene ▇▇
▇▇▇▇▇▇▇▇ Vinyl Corporation
Westlake Vinyls, Inc.
WPT LP]
EXHIBIT A
Material Subsidiaries
North American Bristol Corporation
North American Pipe Corporation
Westlake Styrene ▇▇
▇▇▇▇▇▇▇▇ Polymers LP
WPT LP
Westech Building Products, Inc.
Westlake Petrochemicals ▇▇
▇▇▇▇▇▇▇▇ PVC Corporation
Westlake Vinyls, Inc.