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Exhibit 1.1
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc.
$
___ % Senior Notes Due 2011
Underwriting Agreement
New York, New York
November ___, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
ABN AMRO Incorporated
Banc of America Securities LLC
Bank One Capital Markets, Inc.
Credit Suisse First Boston Corporation
as Representatives of the several Underwriters,
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc., a corporation organized under the laws of Delaware
(the "Company"), proposes to sell to the several underwriters named in Schedule
I hereto (the "Underwriters"), for whom you (the "Representatives") are acting
as representatives, $ principal amount of its __% Senior Notes Due 2011 (the
"Securities") guaranteed by Hybritech Incorporated, a California corporation,
and ▇▇▇▇▇▇▇ Corporation, a Delaware corporation, (together, the "Guarantors"),
to be issued under a senior indenture dated as of April 25, 2001 (the "Senior
Indenture"), as supplemented by a supplemental indenture to be dated as of
November , 2001 (the "First Supplemental Indenture," together with the Senior
Indenture, the "Indenture"), among the Company, the Guarantors and Citibank,
N.A., as trustee (the "Trustee"). To the extent there are no additional
Underwriters listed on Schedule I other than you, the term Representatives as
used herein shall mean you, as Underwriters, and the terms Representatives and
Underwriters shall mean either the singular or plural as the context requires.
Any reference herein to the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus or the 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
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issue date of the Basic Prospectus, any Preliminary Prospectus or the
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 Prospectus or the 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 Prospectus or the Prospectus, as the case may be,
deemed to be incorporated therein by reference. Certain terms used herein are
defined in Section 17 hereof.
1. Representations and Warranties. The Company and the Guarantors represent
and warrant to, and agree with, each Underwriter as set forth below in this
Section 1.
(a) The Company and the Guarantors meet the requirements for use of
Form S-3 under the Act and have prepared and filed with the Commission the
Registration Statement (file number 333-58968) on Form S-3, including a
related basic prospectus, for registration under the Act of the offering
and sale of the Securities. The Registration Statement has become
effective; no stop order suspending the effectiveness of the Registration
Statement is in effect, and no proceedings for such purpose are pending
before or, to the knowledge of the Company and the Guarantors, threatened
by the Commission. The Company and the Guarantors may have filed one or
more amendments thereto, including a Preliminary Prospectus filed in
accordance with Rules 415 and 424(b), each of which has previously been
furnished to you. The Company and the Guarantors will next file with the
Commission the Prospectus in accordance with Rules 415 and 424(b). As
filed, such Prospectus shall contain all Rule 430A Information, together
with all other such required information, 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 Prospectus) as the
Company and the Guarantors have advised you, prior to the Execution Time,
will be included or made therein. The Registration Statement, at the
Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act, and incorporated by reference in the Prospectus, complied or
will comply when so filed in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder; (ii)
on the Effective Date, the Registration Statement did or will, and when the
Prospectus is first filed (if required) in accordance with Rule 424(b) and
on the Closing Date (as defined herein), the Prospectus (and any supplement
thereto) will, comply in all material respects with the applicable
requirements of the Act, the Exchange Act and the
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Trust Indenture Act and the respective rules thereunder; (iii) on the
Effective Date and at the Execution Time, the Registration Statement did
not and 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; (iv) on the Effective Date
and on the Closing Date the Indenture did and will comply in all material
respects with the applicable requirements of the Trust Indenture Act and
the rules thereunder; and (v) on the Effective Date, the Prospectus, if not
filed pursuant to Rule 424(b), will not, and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the 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; except that the representations and warranties
set forth in this paragraph do not apply 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 the Registration Statement, or the
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 specifically for inclusion in the
Registration Statement or the Prospectus (or any supplement thereto).
(c) Each of the Company and its subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or organized
with full corporate power and authority to own or lease, as the case may
be, and to operate its properties and conduct its business as described in
the Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction
which requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business (a "Material Adverse
Effect").
(d) All the outstanding shares of capital stock of each Significant
Subsidiary have been duly and validly authorized and issued and are fully
paid and nonassessable, and, except as otherwise set forth in the
Prospectus or disclosed in writing to the Underwriters, all outstanding
shares of capital stock of each Significant Subsidiary except those
qualifying shares held by individuals to comply with requirements for
individual persons to be among the shareholders or with requirements that
directors hold shares are owned by the Company either directly or through
wholly owned subsidiaries free and clear of any perfected security interest
or any other security interests, claims, liens or encumbrances.
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(e) The Company's authorized equity capitalization is as set forth in
the Prospectus; the shares of Common Stock outstanding on the date hereof
have been duly authorized and are validly issued; the holders of the
outstanding shares of capital stock of the Company are not entitled to any
preemptive or other rights to subscribe for the Securities; and, except as
set forth in the Prospectus or otherwise disclosed in writing to the
Underwriters, no options, warrants or other rights to purchase, agreements
or other obligations to issue, or rights to convert any obligations into or
exchange any securities for, shares of capital stock of or ownership
interests in the Company are outstanding.
(f) There is no franchise, contract or other document of a character
required to be described in the Registration Statement or Prospectus, or to
be filed as an exhibit thereto, which is not described or filed as
required; and the information in the Company's Annual Report on Form 10-K
for the year ended December 31, 2000, incorporated by reference in the
Prospectus, under the captions "Business - Patents and Trademarks",
"Business - Government Regulations", "Business - Environmental Matters" and
"Legal Proceedings", the information in the Company's Quarterly Report on
Form 10-Q for the quarterly period ended March 31, 2001, under the caption
"Other Information - Legal Proceedings", the information in the Company's
Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2001,
under the caption "Other Information - Legal Proceedings", and the
information in the Company's Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 2001, under the caption "Other
Information - Legal Proceedings", insofar as such statements summarize
legal matters, agreements, documents or proceedings discussed therein, are
accurate summaries of such legal matters, agreements, documents or
proceedings.
(g) This Agreement has been duly authorized, executed and delivered by
the Company and the Guarantors, and constitutes a valid and binding
obligation of the Company and the Guarantors enforceable in accordance with
its terms (subject, as to the enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity); the Senior Indenture has been duly authorized,
executed and delivered by the Company and the Guarantors and constitutes a
legal, valid and binding instrument enforceable against the Company and the
Guarantors in accordance with its terms (subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time to time in
effect and to general principles of equity); the First Supplemental
Indenture has been duly authorized, assuming due authorization, execution
and delivery thereof by the Trustee and when executed and delivered by the
Company and the Guarantors, will constitute a legal, valid and binding
instrument enforceable against the Company and the Guarantors in accordance
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with its terms (subject, as to the enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity); the Securities have been duly authorized, and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters, will have been
duly executed and delivered by the Company and the Guarantors, and will
constitute the legal, valid and binding obligations of the Company and the
Guarantors entitled to the benefits of the Indenture (subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights generally
from time to time in effect and to general principles of equity).
(h) Neither the Company nor either of the Guarantors is and, after
giving effect to the offering and the sale of the Securities and the
application of the proceeds thereof as described in the Prospectus, neither
the Company nor either of the Guarantors will be, an "investment company"
as defined in the Investment Company Act of 1940, as amended.
(i) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with
transactions contemplated herein, except such as have been obtained under
the Act and 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 in the manner
contemplated herein and in the Prospectus.
(j) Neither the issue and sale of the Securities nor the consummation
of any other of the transactions herein contemplated nor the fulfillment of
the terms hereof will conflict with, result in a breach or violation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any of its subsidiaries pursuant to, (i) the charter or
by-laws of the Company or any of its subsidiaries, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument
to which the Company or any of its subsidiaries is a party or bound or to
which its or their property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or any of
its subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over
the Company or any of its subsidiaries or any of its or their properties,
except, in the case of clause (ii) or (iii), as would not have a Material
Adverse Effect.
(k) No holders of securities of the Company or the Guarantors have
rights to the registration of such securities under the Registration
Statement.
(l) The consolidated historical financial statements and schedules of
the Company and its consolidated subsidiaries included in the Prospectus
and the
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Registration Statement present fairly in all material respects the
financial condition, results of operations and cash flows of the Company as
of the dates and for the periods indicated, comply as to form with the
applicable accounting requirements of the Act and have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved (except as otherwise noted
therein). The summary financial data set forth under the caption "Summary
Financial Data" in, and the selected financial data incorporated by
reference in Item 7 of the Company's Annual Report on Form 10-K under the
caption "Financial Statements and Supplementary Data," the Company's
Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2001
under the caption "Financial Statements," the Company's Quarterly Report on
Form 10-Q for the quarterly period ended June 30, 2001 under the caption
"Financial Statements" and the Company's Quarterly Report on Form 10-Q for
the quarterly period ended September 30, 2001 under the caption "Financial
Statements" into, the Prospectus and Registration Statement fairly present,
on the basis stated in the Prospectus and the Registration Statement or
such Reports, as applicable, the information included therein.
(m) Except as set forth in the Prospectus (exclusive of any supplement
thereto), no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property is pending or,
to the best knowledge of the Company and the Guarantors, threatened that
(i) could reasonably be expected to have a material adverse effect on the
performance of this Agreement or the consummation of any of the
transactions contemplated hereby or (ii) could reasonably be expected to
have a Material Adverse Effect.
(n) The Company and each of its subsidiaries owns or leases all such
properties as are necessary to the conduct of its operations as presently
conducted.
(o) Neither the Company nor any subsidiary is in violation or default
of (i) any provision of its charter or bylaws, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument
to which it is a party or bound or to which its property is subject, or
(iii) any statute, law, rule, regulation, judgment, order or decree of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or such
subsidiary or any of its properties, as applicable, except, in the case of
clause (ii) or (iii), for any such default that would not result in a
Material Adverse Effect.
(p) KPMG LLP, who have certified certain financial statements of the
Company and its consolidated subsidiaries and delivered their report with
respect to the audited consolidated financial statements and schedules
included in the
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Prospectus, are independent public accountants with respect to the Company
within the meaning of the Act and the applicable published rules and
regulations thereunder.
(q) There are no transfer taxes or other similar fees or charges under
Federal law or the laws of any state, or any political subdivision thereof,
required to be paid in connection with the execution and delivery of this
Agreement by the Company or sale by the Company of the Securities.
(r) Except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto), the Company and each of the
Guarantors has filed all foreign, federal, state and local income tax
returns that are required to be filed or has requested extensions thereof
(except in any case in which the failure so to file would not have a
Material Adverse Effect) and has paid, or made provision for the payment
of, all income taxes required to be paid by it and any other income tax
related assessment, fine or penalty levied against it, to the extent that
any of the foregoing is currently due and payable, except for any such
assessment, fine or penalty that is currently being contested in good faith
or as would not have a Material Adverse Effect.
(s) Except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto), no labor problem or dispute with the
employees of the Company or any of its subsidiaries exists or is threatened
or imminent, and the Company and the Guarantors are not aware of any
existing or imminent labor disturbance by the employees of any of its or
its subsidiaries' principal suppliers, contractors or customers, that could
have a Material Adverse Effect.
(t) Except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto), the Company and each of its
subsidiaries are insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as are prudent and
customary in the businesses in which they are engaged; all policies of
insurance insuring the Company or any of its subsidiaries or their
respective businesses, assets, employees, officers and directors are in
full force and effect; the Company and its subsidiaries are in compliance
with the terms of such policies and instruments in all material respects;
and there are no claims by the Company or any of its subsidiaries under any
such policy or instrument as to which any insurance company is denying
liability or defending under a reservation of rights clause that could
reasonably be expected to have a Material Adverse Effect; neither the
Company nor any such subsidiary has been refused any insurance coverage
sought or applied for; and neither the Company nor any such subsidiary has
any reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its business
at a cost that would not have a Material Adverse Effect.
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(u) No subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock, from repaying to the
Company any loans or advances to such subsidiary from the Company or from
transferring any of such subsidiary's property or assets to the Company or
any other subsidiary of the Company, except as described in or contemplated
by the Prospectus.
(v) Except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto), the Company and its subsidiaries
possess all licenses, certificates, permits and other authorizations issued
by the appropriate federal, state or foreign regulatory authorities
necessary to conduct their respective businesses, and neither the Company
nor any such subsidiary has received any notice of proceedings relating to
the revocation or modification of any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a Material Adverse Effect.
(w) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(x) The Company and the Guarantors have not taken, directly or
indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities.
(y) The Company and its subsidiaries are (i) in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received and are in compliance with all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) have
not received notice of any actual or potential liability for the
investigation or remediation of any disposal or release of hazardous or
toxic substances or wastes, pollutants or contaminants, except where such
non-compliance with Environmental Laws, failure to receive required
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permits, licenses or other approvals, or liability would not, individually
or in the aggregate, have a Material Adverse Effect, except as set forth in
or contemplated in the Prospectus (exclusive of any supplement thereto).
Except as set forth in the Prospectus, or disclosed in writing to the
Underwriters, neither the Company nor any of the subsidiaries has been
named as a "potentially responsible party" under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended.
(z) In the ordinary course of its business, the Company periodically
reviews the effect of Environmental Laws on the business, operations, and
properties of the Company and its subsidiaries. In the course of those
reviews, the Company attempts to identify and evaluate any costs and
liabilities (including, without limitation, any capital or operating
expenditures required for remediation of environmental contamination
required by those Environmental Laws, compliance with those Environmental
Laws, costs of obtaining permits, licenses or approvals required by those
Environmental Laws, and constraints on operating activities resulting from
those Environmental Laws) that could be incurred as a result of those
Environmental Laws. On the basis of such review, the Company has reasonably
concluded that such costs and liabilities would not, singly or in the
aggregate, have a Material Adverse Effect, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto).
(aa) Each of the Company and its subsidiaries has fulfilled its
obligations, if any, under the minimum funding standards of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Employee Retirement Income Security Act of 1974 ("ERISA")
and the regulations and published interpretations thereunder with respect
to each "plan" (as defined in Section 3(3) of ERISA and such regulations
and published interpretations) in which employees of the Company and its
subsidiaries are eligible to participate and each such plan is in
compliance in all material respects with the presently applicable
provisions of ERISA and such regulations and published interpretations. The
Company and its subsidiaries have not incurred any unpaid liability to the
Pension Benefit Guaranty Corporation (other than for the payment of
premiums in the ordinary course) or to any such plan under Title IV of
ERISA.
(bb) The subsidiaries listed on Exhibit 21 to the Company's Annual
Report on Form 10-K for the year ended December 31, 2000, are the only
Significant Subsidiaries of the Company.
(cc) The Company and its subsidiaries own, possess, license or have
other rights to use, on terms commercially acceptable to the Company, all
patents, patent applications, trade and service marks, trade and service
▇▇▇▇ registrations, trade names, copyrights, licenses, inventions, trade
secrets, technology, know-how and other intellectual property that, in the
judgement of the Company, are
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necessary for the conduct of the Company's and the Guarantors' business as
now conducted or as proposed in the Prospectus to be conducted except as
would not have a Material Adverse Effect (collectively, the "Intellectual
Property"). Except as set forth in the Prospectus (exclusive of any
supplement thereto) and as included or incorporated by reference in the
Company's Annual Report on Form 10-K for the year ended December 31, 2000,
(a) to the Company's knowledge there are no rights of third parties to any
such Intellectual Property that would conflict with the Company's business
as now conducted or as proposed in the Prospectus to be conducted, except
as would not have a Material Adverse Effect; (b) to the Company's knowledge
there is no infringement by third parties of any such Intellectual
Property, except as would not have a Material Adverse Effect; (c) there is
no pending or to the Company's knowledge threatened action, suit,
proceeding or claim by others challenging the Company's and the Guarantors'
rights in or to any such Intellectual Property, and the Company and the
Guarantors are unaware of any facts which would form a reasonable basis for
any such claim, except as would not have a Material Adverse Effect; (d)
there is no pending or to the Company's knowledge threatened action, suit,
proceeding or claim by others challenging the validity or scope of any such
Intellectual Property, and the Company and the Guarantors are unaware of
any facts which would form a reasonable basis for any such claim, except as
would not have a Material Adverse Effect; (e) there is no pending or to the
Company's knowledge threatened action, suit, proceeding or claim by others
that the Company or either Guarantor infringes or otherwise violates any
patent, trademark, copyright, trade secret or other proprietary rights of
others, and the Company and the Guarantors are unaware of any other fact
which would form a reasonable basis for any such claim, except as would not
have a Material Adverse Effect; (f) to the Company's knowledge there is no
U.S. patent or published U.S. patent application which contains claims that
dominate or may dominate any Intellectual Property described in the
Prospectus as being owned by or licensed to the Company or either Guarantor
or that interferes with the issued or pending claims of any such
Intellectual Property; and (g) there is no prior art of which the Company
or either Guarantor is aware that may render any U.S. patent held by the
Company or either Guarantor invalid or any U.S. patent application held by
the Company unpatentable which has not been disclosed to the U.S. Patent
and Trademark Office except in each case such as if determined adversely to
the Company would not have a Material Adverse Effect.
(dd) Neither the Company nor any of its subsidiaries nor any of its or
their properties or assets has any immunity from such proper and lawful
jurisdiction as any court of the United States or New York may otherwise
have or from any proper and lawful legal process of such court (whether
through service or notice, attachment prior to judgment, attachment in aid
of execution or otherwise) under the laws of the United States of America
or the laws of New York State.
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(ee) There has not occurred any material adverse change, or any
development, involving insofar as can reasonably be foreseen a prospective
material adverse change, in the condition, financial or otherwise, or in
the earnings, business or operations of the Company and its subsidiaries,
taken as a whole, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement).
(ff) Each Preliminary Prospectus filed as part of the registration
statement for the registration of the Securities as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 424 under the Act,
complied when so filed in all material respects with the Act and the
applicable rules and regulations of the Commission thereunder.
(gg) The Company intends to apply the proceeds from the sale of the
Securities solely, directly or indirectly, in the Company's U.S.
operations. In applying the proceeds from the sale of the Securities, the
Company represents that, in no event, will any portion of the proceeds from
the sale of the Securities be used to repay any portion of any
indebtedness, the proceeds of which were used to previously fund any
foreign investment or the working capital needs of any foreign Subsidiary,
foreign affiliate or other foreign entity. The Company further represents
that, in no event, will any portion of the proceeds of the sale of the
Securities be used to fund any foreign investment or the working capital
needs of any foreign Subsidiary, foreign affiliate or other foreign entity.
Any certificate signed by any officer of the Company and delivered to
the Representatives in connection with the offering of the Securities shall
be deemed a representation and warranty by the Company, as to matters
covered thereby, to each Underwriter.
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 a purchase price of % of the principal
amount thereof, plus accrued interest, if any, on the Securities from , 2001 to
the Closing Date, the principal amount of the Securities set forth opposite such
Underwriter's name in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the Securities shall
be made at 10:00 AM, New York City time, on , 2001, or at such time on such
later date not more than three Business Days after the foregoing date as the
Representatives shall designate, which date and time may be postponed by
agreement between the Representatives and the Company or as provided in Section
9 hereof (such date and time of delivery and payment for the Securities being
herein called the "Closing Date"). Delivery of the Securities shall be made to
the Representatives for the respective accounts of the several Underwriters
against payment by the several Underwriters
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through the Representatives of the purchase price thereof to or upon the order
of the Company by wire transfer payable in same-day funds to an account
specified by the Company. Delivery of the Securities shall be made through the
facilities of The Depository Trust Company.
4. Offering by Underwriters. It is understood that the several Underwriters
propose to offer the Securities for sale to the public as set forth in the
Prospectus.
5. 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
thereof, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the Registration
Statement or supplement to the Prospectus or any Rule 462(b) Registration
Statement 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. Subject to the foregoing sentence, if the
Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Prospectus is otherwise required under Rule 424(b),
the Company will cause the Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Representatives of such timely
filing. The Company will promptly advise the Representatives (1) when the
Registration Statement, if not effective at the Execution Time, shall have
become effective, (2) when the Prospectus, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to Rule
424(b) or when any Rule 462(b) Registration Statement shall have been filed
with the Commission, (3) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (4) of any request by the Commission or its
staff for any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the Prospectus or for any
additional information, (5) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (6) 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 institution or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of
any such stop order or the suspension of any such qualification and, if
issued, to obtain as soon as possible the withdrawal thereof.
13
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event shall have occurred as a
result of which the 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 to
amend the Registration Statement or supplement the Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will (1) notify the Representatives of such event, (2)
prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or effect such compliance, and (3)
supply any supplemented Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, 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, photocopies of the signed Registration
Statement (including exhibits thereto) and to each other Underwriter a
photocopy of the executed Registration Statement (without 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 each Preliminary Prospectus and the
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, if necessary, for the qualification of
the Securities 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 and will pay any
fee of the National Association of Securities Dealers, Inc., in connection
with its review of the offering; provided that in no event shall the
Company be obligated to qualify to do business in any jurisdiction where it
is not now so qualified or to take any action that would subject it to
service of process in suits, other than those arising out of the offering
or sale of the Securities, or to general taxation, in any jurisdiction
where it is not now so subject.
(f) The Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
14
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Securities, as the case may be, shall be
subject to the accuracy of the representations and warranties on the part of the
Company and the Guarantors contained herein as of the Execution Time and Closing
Date, to the accuracy of the statements of the Company and the Guarantors made
in any certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) 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) 9:30 AM 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 Prospectus, or any supplement thereto, is required pursuant
to Rule 424(b), the Prospectus, and any such supplement, will be filed in
the manner and within the time period required by Rule 424(b); and 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 requested and caused ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
counsel for the Company and the Guarantors, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to the
Representatives, in substantially the form attached as Annex A.
(c) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇, the Vice
President, General Counsel and Secretary of the Company to have furnished
to the Representatives his opinion, dated the Closing Date and addressed to
the Representatives, in substantially the form attached as Annex B.
(d) The Representatives shall have received from Cleary, Gottlieb,
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date and addressed to the Representatives, with respect
to the issuance and sale of the Securities, the Indenture, the Registration
Statement, the 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 and the Guarantors, signed by the respective
Chairman of the Board or President of the Company and each Guarantor
15
and the respective principal financial or accounting officer of the
Company and each Guarantor, dated the Closing Date, to the effect that
the signers of such certificate have carefully examined the
Registration Statement, the Prospectus, any supplements to the
Prospectus and this Agreement and that:
(1) the representations and warranties of the Company
and the Guarantors in this Agreement are true and correct on
and as of the Closing Date with the same effect as if made on
the Closing Date and the Company and each Guarantor have
complied with all the agreements and satisfied all the
conditions on their part to be performed or satisfied at or
prior to the Closing Date;
(2) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the knowledge of the
Company and the Guarantors, threatened; and
(3) since the date of the most recent financial
statements included or incorporated by reference in the
Prospectus (exclusive of any supplement thereto), there has
been no material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(f) The Company shall have requested and caused KPMG LLP to have
furnished to the Representatives, at the Execution Time and at the Closing
Date, letters, dated respectively as of the Execution Time and as of the
Closing Date, in substantially the form attached as Annex C.
(g) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (f) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Prospectus (exclusive of any
supplement thereto) the effect of which, in any case referred to in clause
(i) or (ii) above, is, in the sole judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable to proceed
with the offering or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any supplement thereto).
16
(h) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company and the Guarantors shall
have furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably request.
(j) The Securities shall conform in all material respects to the
description thereof contained in the Prospectus.
(k) The Company shall have received from ▇▇▇▇▇'▇ Investors Service,
Inc. confirmation that it has assigned the Securities a rating of Baa3,
from Standard & Poor's Rating Services confirmation that it has assigned
the Securities a rating of BBB, and from Fitch IBCA, Duff & ▇▇▇▇▇▇
confirmation that it has assigned the Securities a rating of BBB.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and
counsel for the Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the
Closing Date by the Representatives. Notice of such cancellation shall be
given to the Company in writing or by telephone or facsimile confirmed in
writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for
the Underwriters, at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the
Closing Date.
7. 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 6 hereof is not satisfied, because of
any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company or either Guarantor 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 and the Guarantors will
reimburse the Underwriters severally through ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. on demand
for all reasonable out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
17
8. Indemnification and Contribution. (a) The Company and each Guarantor,
jointly and severally, agree 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, joint
or several, to which they or any of them 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 thereof, or in the Basic Prospectus, any Preliminary Prospectus or the
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company and the Guarantors will
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for inclusion
therein; provided further, that with respect to any untrue statement or omission
of material fact made in any Preliminary Prospectus, the indemnity agreement
contained in this Section 8(a) shall not inure to the benefit of any Underwriter
from whom the person asserting any such loss, claim, damage or liability
purchased the Securities concerned, to the extent that any such loss, claim,
damage or liability of such Underwriter occurs under the circumstance where it
shall have been determined by a court of competent jurisdiction by final and
nonappealable judgment that (w) the Company had previously furnished copies of
the Prospectus to the Representatives, (x) delivery of the Prospectus was
required by the Act to be made to such person, (y) the untrue statement or
omission of a material fact contained in the Preliminary Prospectus was
corrected in the Prospectus and (z) there was not sent or given to such person,
at or prior to the written confirmation of the sale of such Securities to such
person, a copy of the Prospectus. This indemnity agreement will be in addition
to any liability which the Company and the Guarantors may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold
harmless the Company and each Guarantor, each of their directors, each of their
officers who signs the Registration Statement, and each person who controls the
Company or either Guarantor within the meaning of either the Act or the
18
Exchange Act, to the same extent as the foregoing indemnity from the Company and
each Guarantor to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Company by or on
behalf of such Underwriter through the Representatives specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any Underwriter
may otherwise have. The Company and the Guarantors acknowledge that the
statements set forth (i) in the last paragraph of the cover page regarding
delivery of the Securities and, (ii) under the heading "Underwriting", (A) the
list of Underwriters and their respective participation in the sale of the
Securities following the second paragraph and (B) the seventh, eighth and ninth
paragraphs, related to stabilization, syndicate covering transactions and
penalty bids, in any Preliminary Prospectus and the Prospectus constitute the
only information furnished in writing by or on behalf of the several
Underwriters for inclusion in any Preliminary Prospectus or the Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8 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 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to
19
represent the indemnified party within a reasonable time after notice of the
institution of such action or (iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of the indemnifying
party. An indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company, the Guarantors and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company,
each Guarantor 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 the Guarantors on the one hand and by the Underwriters on the other
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, the
Guarantors and the Underwriters severally shall contribute in such proportion as
is appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Guarantors on the one hand and of the Underwriters
on the other in connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable considerations. Benefits
received by the Company and the Guarantors shall be deemed to be equal to the
total net proceeds from the offering (before deducting expenses) received by the
Company, and benefits received by the Underwriters shall be deemed to be equal
to the total underwriting discounts and commissions, in each case as set forth
on the cover page of the Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company or either Guarantor
on the one hand or the Underwriters on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company, the Guarantors and the
Underwriters agree that it would not be just and equitable if contribution were
determined by pro rata
20
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 8, 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 or either Guarantor within the
meaning of either the Act or the Exchange Act, each officer of the Company
or either Guarantor who shall have signed the Registration Statement and
each director of the Company or either Guarantor shall have the same rights
to contribution as the Company and the Guarantors, subject in each case to
the applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall fail 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 principal amount of
Securities set forth opposite their names in Schedule I 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 I 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, the Company
or either Guarantor. In the event of a default by any Underwriter as set forth
in this Section 9, 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 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, the Guarantors and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if at any time prior to such time
(i) trading in the Company's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been
21
established on such Exchange, (ii) a banking moratorium shall have been declared
either by Federal or New York State authorities or (iii) there shall have
occurred 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 sole judgment of the
Representatives, impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Prospectus (exclusive of any
supplement thereto).
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company and
the Guarantors or their 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
either Guarantor or any of the officers, directors, employees, agents or
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 7 and 8 hereof
shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telefaxed to the ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. General Counsel (fax no.: (212)
▇▇▇-▇▇▇▇) and confirmed to the General Counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., at
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: General Counsel; or,
if sent to the Company, will be mailed, delivered or telefaxed to ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, Inc. ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇
and confirmed to it at (▇▇▇) ▇▇▇-▇▇▇▇), attention of the General Counsel.
13. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers,
directors, employees, agents and controlling persons referred to in Section 8
hereof, and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more counterparts,
each of which shall constitute an original and all of which together shall
constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience only and
shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement, shall
have the meanings indicated.
22
"Act" shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in paragraph 1(a)
above contained in the Registration Statement at the Effective Date including
any Preliminary Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Common Stock" shall mean the Company's common stock, par value $.10 per
share.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus referred to
in paragraph 1(a) above and any preliminary prospectus included in the
Registration Statement at the Effective Date that omits Rule 430A Information.
"Prospectus" shall mean the prospectus supplement relating to the
Securities that was first filed pursuant to Rule 424(b) after the Execution
Time, together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement referred to
in paragraph 1(a) above, including 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, 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.
23
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean 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 referred to in Section 1(a)
hereof.
"Significant Subsidiary" shall mean each subsidiary of the Company that as
of the date of this Agreement is a "significant subsidiary" for purposes of Rule
1-02 of regulation S-X under the Act.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated thereunder.
24
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, the Guarantors and the several Underwriters.
Very truly yours,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc.
By: __________________________
Name:
Title:
Hybritech, Incorporated
By: __________________________
Name:
Title:
▇▇▇▇▇▇▇ Corporation
By: __________________________
Name:
Title:
25
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
ABN AMRO Incorporated
Banc of America Securities LLC
Bank One Capital Markets, Inc.
Credit Suisse First Boston Corporation
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
By: _______________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By: _______________________
Name:
Title:
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
SCHEDULE I
Principal amount of
Securities
Underwriters to be Purchased
------------ ---------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc........................................... $
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated.................................. $
ABN AMRO Incorporated.............................................. $
Banc of America Securities LLC..................................... $
Bank One Capital Markets, Inc...................................... $
Credit Suisse First Boston Corporation............................. $
-----------------
Total..................................................... $
ANNEX A
OPINION OF ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
ANNEX B
OPINION OF ▇▇▇▇▇▇▇ ▇▇▇
ANNEX C
COMFORT LETTER