POLAROID CORPORATION
DEBT SECURITIES
UNDERWRITING AGREEMENT
----------------------
New York, New York
, 1998
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Polaroid Corporation, a Delaware corporation (the "Company"), may issue
and sell from time to time series of its debt securities registered under the
registration statement[s] referred to in Paragraph 1(a) hereof (the "Securities"
and, individually, a "Security"). The Company proposes to sell to the
underwriters named in Schedule II hereto (the "Underwriters"), for whom you are
acting as representatives (the "Representative"), a series of Securities, of the
designation, with the terms and in the aggregate principal amount specified in
Schedule I hereto (the "Underwritten Securities" and, individually, an
"Underwritten Security"). If the firm or firms listed in Schedule II hereto
include only the firm or firms listed in Schedule I hereto, then the terms
"Underwriters" and "Representative" shall each be deemed to refer to such firm
or firms.
1. Representations, Warranties and Agreements of the Company. The
Company represents, warrants and agrees that:
(a) [A] [R]egistration statement[s] (No[s]. 333-0791 and 333-_____),
including a prospectus, with respect to the Securities has [have] been
prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "Act"), and the rules and
regulations (the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder and has [have] become
effective. As used in this Agreement, (i) "Registration Statement" means
[each] such registration statement, as amended and supplemented to the
date hereof; (ii) "Preliminary Prospectus" means each prospectus
(including all documents incorporated therein by reference) included in
that [the most recently filed] Registration Statement, or amendments or
supplements thereof, before it became effective under the Act, including
any prospectus filed with the Commission pursuant to Rule 424(a) of the
Rules and Regulations; (iii) "Basic Prospectus" means the prospectus
included in the [most recently filed] Registration Statement; and (iv)
"Prospectus" means the Basic Prospectus, together with any prospectus
amendment or supplement (including in each case all documents
incorporated therein by reference) specifically relating to the
Underwritten Securities, as
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filed with the Commission pursuant to paragraph (b) of Rule 424 of the
Rules and Regulations. The Commission has not issued any order
preventing or suspending the use of any Prospectus, and no proceedings
for such purposes have been instituted or are pending or, to the
knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has
been complied with.
(b) The Registration Statements and each Prospectus contain, and
(in the case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being made)
will contain at all times during the period specified in Paragraph 7(c)
hereof, all statements which are required by the Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
rules and regulations of the Commission under such Acts; the Indenture,
dated as of January 7, 1997, by and between the Company and State Street
Bank and Trust Company, as trustee (the "Trustee") pursuant to which the
Underwritten Securities will be issued (the "Indenture") conforms, and
with any amendments and supplements thereto will conform, with the
requirements of the Trust Indenture Act and the rules and regulations of
the Commission thereunder; and the Registration Statements and each
Prospectus do not, and (in the case of any amendment or supplement to
any such document, or any material incorporated by reference in any such
document, filed with the Commission after the date as of which this
representation is being made) will not, at any time during the period
specified in Paragraph 7(c) hereof, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided that the Company makes no representation or warranty as to
information contained in or omitted from any Registration Statement or
any Prospectus in reliance and based upon information furnished to the
Company through the Representative by or on behalf of any Underwriter,
or as to any statements in or omissions from the Statement of
Eligibility of the Trustee under the Indenture.
(c) Neither the Company nor the Significant Subsidiary (as defined
in paragraph (h) hereof) is in violation of its corporate charter or
by-laws or in default under any agreement, indenture or instrument,
except for such defaults that would not result in a material adverse
change, or any development involving a material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and the
Significant Subsidiary (a "Material Adverse Effect"), otherwise than as
set forth or contemplated in the Prospectus; and the execution, delivery
and performance of this Agreement, the Indenture, the Underwritten
Securities, and any Delayed Delivery Contracts (as defined in Paragraph
3 hereof) and the consummation of the transactions contemplated herein,
and in the Prospectus (including the issuance and sale of the
Underwritten Securities and the use of the proceeds from the
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sale thereof as described in the Prospectus under the caption "Use of
Proceeds") have been duly authorized by all necessary corporate action
and do not and will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or the
Significant Subsidiary pursuant to, any material agreement, indenture or
instrument to which the Company or the Significant Subsidiary is a party
or by which any of them is bound or to which any of their respective
properties or assets is subject, nor will such action result in a
material violation of the charter or by-laws of the Company or the
Significant Subsidiary or any order, rule or regulation of any court or
governmental agency having jurisdiction over the Company, the
Significant Subsidiary or their respective properties; and except as
required by the Act, the Trust Indenture Act, the Exchange Act and
applicable state securities laws, no consent, authorization or order of,
or filing or registration with, any court or governmental agency is
required for the execution, delivery and performance of this Agreement,
the Delayed Delivery Contracts and the Indenture or the consummation of
the transactions contemplated hereby and thereby.
(d) Except as described in or contemplated by the Registration
Statements and the Prospectus, neither the Company nor any of its
subsidiaries has sustained any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree; and there has not been any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries, except as described in or contemplated by the
Prospectus.
(e) KPMG Peat Marwick LLP ("KPMG"), whose report appears in the
Company's most recent Annual Report on Form 10-K which is incorporated
by reference in each Prospectus, are independent accountants as required
by the Act and the Rules and Regulations.
(f) On the Delivery Date (as defined in Paragraph 6 hereof) (i)
the Indenture will have been validly authorized, executed and delivered
by the Company and duly qualified under the Trust Indenture Act and will
constitute the legally binding obligation of the Company, (ii) the
Underwritten Securities will have been validly authorized and executed
and, upon payment therefor as provided in this Agreement, will be
validly issued and outstanding, and will constitute legally binding
obligations of the Company entitled to the benefits of the Indenture,
and (iii) the Underwritten Securities and the Indenture will conform to
the descriptions thereof contained in the Prospectus.
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(g) This Agreement has been validly authorized, executed and
delivered by the Company.
(h) The Company and the Significant Subsidiary have been duly
incorporated and are validly existing and remain subsisting corporations
under the laws of their respective jurisdictions of incorporation, are
duly qualified to do business and in good standing as foreign
corporations in each jurisdiction in which their respective ownership of
properties or the conduct of their respective businesses require such
qualification, except where the failure to so qualify would not have a
Material Adverse Effect, and have power and authority necessary to own
or hold their respective properties and to conduct the businesses in
which they are engaged and, with respect to the Company, to enter into
and perform its obligations under this Agreement; and none of the
subsidiaries of the Company (other than Polaroid International B.V. (the
"Significant Subsidiary")) is a "significant subsidiary", as such term
is defined in Rule 405 of the Rules and Regulations.
(i) There is no material action, suit or proceeding before any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened, against or affecting
the Company or the Significant Subsidiary, which is required to be
disclosed in any Prospectus (other than as disclosed therein), or which
might reasonably be expected to have a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation of the transactions
contemplated in this Agreement or the performance by the Company of its
obligations hereunder.
(j) The financial statements filed as part of the Registration
Statements or included in any Preliminary Prospectus present, or (in the
case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being made)
will present at all times during the period specified in Paragraph 7(c)
hereof, fairly, the financial condition and results of operations of the
Company and its consolidated subsidiaries, at the dates and for the
periods indicated, and have been, and (in the case of any amendment or
supplement to any such document, or any material incorporated by
reference in any such document, filed with the Commission after the date
as of which this representation is being made) will be at all times
during the period specified in Paragraph 7(c) hereof, prepared in
conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules incorporated by reference in any Prospectus present
fairly in accordance with GAAP the information required to be stated
therein. The pro forma financial statements and the related notes
thereto incorporated by reference in the Registration Statements and any
Prospectus present fairly the information shown therein, have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly
compiled on the bases described therein, and
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the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein.
(k) The documents incorporated by reference into any Preliminary
Prospectus or Prospectus have been, and (in the case of any amendment or
supplement to any such document, or any material incorporated by
reference in any such document, filed with the Commission after the date
as of which this representation is being made) will be at all times
during the period specified in Paragraph 7(c) hereof, prepared by the
Company in conformity with the applicable requirements of the Act and
Rules and Regulations and the Exchange Act and the rules and regulations
of the Commission thereunder and such documents have been, or (in the
case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being made)
will be at all times during the period specified in Paragraph 7(c)
hereof, timely filed as required thereby.
(l) There are no contracts or other documents which are required
to be filed as exhibits to the Registration Statements by the Act or by
the Rules and Regulations, or which were required to be filed as
exhibits to any document incorporated by reference in any Prospectus by
the Exchange Act or the rules and regulations of the Commission
thereunder, which have not been filed as exhibits to the Registration
Statements or to such document or incorporated therein by reference as
permitted by the Rules and Regulations or the rules and regulations of
the Commission under the Exchange Act as required.
(m) The Company and the Significant Subsidiary have good and valid
title to all or substantially all of their respective properties.
(n) The Company is not, and upon the issuance and sale of the
Underwritten Securities as herein contemplated and the application of
the net proceeds therefrom as described in the Prospectus will not be,
an "investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of
1940, as amended (the "1940 Act").
2. Purchase of the Securities by the Underwriters. 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, severally and
not jointly, and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at the purchase price and on the other terms set forth in
Schedule I hereto, the principal amount of the Underwritten Securities set forth
opposite its name in Schedule II hereto.
6
3. Delayed Delivery Contracts. Any offer to purchase Underwritten
Securities by institutional investors solicited by the Underwriters for delayed
delivery shall be made pursuant to contracts substantially in the form of
Exhibit A attached hereto, with such changes therein as the Company and the
Representative may approve (the "Delayed Delivery Contracts"). The Company shall
have the right, in its sole discretion, to approve or disapprove each such
institutional investor. Underwritten Securities which are subject to Delayed
Delivery Contracts are herein sometimes called "Delayed Delivery Underwritten
Securities" and Underwritten Securities which are not subject to Delayed
Delivery Contracts are herein sometimes called "Immediate Delivery Underwritten
Securities".
Contemporaneously with the purchase on the Delivery Date by the
Underwriters of the Immediate Delivery Underwritten Securities pursuant to this
Agreement, the Company will pay to the Representative, for the account of the
Underwriters, the compensation specified in Schedule I hereto for arranging the
sale of Delayed Delivery Underwritten Securities. The Underwriters shall have no
responsibility with respect to the validity or performance of any Delayed
Delivery Contracts.
For the purposes of determining the principal amount of Immediate
Delivery Underwritten Securities to be purchased by each Underwriter, there
shall be deducted from the principal amount of Underwritten Securities to be
purchased by such Underwriter as set forth in Schedule II hereto that portion of
the aggregate principal amount of Delayed Delivery Underwritten Securities that
the principal amount of Underwritten Securities to be purchased by such
Underwriter as set forth in Schedule II hereto bears to the aggregate principal
amount of Underwritten Securities set forth there to be purchased by all of the
Underwriters (in each case as adjusted by the Representative to avoid fractions
of the minimum principal amount in which the Underwritten Securities may be
issued), except to the extent that the Representative determines, in its
discretion, that such deduction shall be otherwise than in such proportion and
so advises the Company.
4. Conditions of the Company's Obligations. The Company shall not be
obligated to deliver any Underwritten Securities except upon payment for all
Immediate Delivery Underwritten Securities to be purchased pursuant to this
Agreement as hereinafter provided.
5. Defaulting Underwriters. If any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Underwriters, if any, shall be obligated to purchase the
Immediate Delivery Underwritten Securities which the defaulting Underwriter
agreed but failed to purchase in the respective proportions which the principal
amount of Underwritten Securities set forth in Schedule II hereto to be
purchased by each remaining non-defaulting Underwriter set forth therein bears
to the aggregate principal amount of Underwritten Securities set forth therein
to be purchased by all the remaining non-defaulting Underwriters; provided that
the remaining non-defaulting Underwriters shall not be obligated to purchase any
Immediate Delivery Underwritten Securities if the aggregate principal amount of
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Immediate Delivery Underwritten Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase exceeds 9.09% of the total principal
amount of Underwritten Securities, and any remaining non-defaulting Underwriter
shall not be obligated to purchase more than 110% of the principal amount of
Underwritten Securities set forth in Schedule II hereto to be purchased by it.
If the foregoing maximums are exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the Representative who
so agree, shall have the right, but shall not be obligated, to purchase, in such
proportion as may be agreed upon among them, all the Immediate Delivery
Underwritten Securities. If the remaining Underwriters or other underwriters
satisfactory to the Representative do not elect to purchase the Immediate
Delivery Underwritten Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the Company,
except that the Company will continue to be liable for the payment of expenses
as set forth in Paragraph 7(k) hereof.
Nothing contained in this Paragraph 5 shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused by
its default. If other underwriters are obligated or agree to purchase the
Immediate Delivery Underwritten Securities of a defaulting or withdrawing
Underwriter, either the Representative or the Company may postpone the Delivery
Date for up to seven full business days in order to effect any changes that in
the opinion of counsel for the Company or counsel for the Underwriters may be
necessary in the Registration Statements, any Prospectus or in any other
document or arrangement.
6. Delivery and Payment for the Securities. Delivery of and payment
for the Immediate Delivery Underwritten Securities shall be made at such
address, date and time as may be specified in Schedule I hereto. This date and
time are sometimes referred to as the "Delivery Date". On the Delivery Date the
Company shall deliver the Immediate Delivery Underwritten Securities to The
Depository Trust Company, on behalf of the Representative, for the account of
each Underwriter against payment to the Company by wire transfer of immediately
available funds to a bank account designated by the Company. Time shall be of
the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each Underwriter
hereunder. Upon delivery, the Immediate Delivery Underwritten Securities shall
be in registered form and in such denominations as may be set forth on Schedule
I hereto. The certificates representing the Immediate Delivery Underwritten
Securities shall be registered in the name of Cede & Co. and shall be made
available for inspection by the Representative in New York, New York not later
than 2:00 P.M., local time, on the business day prior to the Delivery Date.
8
7. Further Agreements of the Company. The Company agrees:
(a) To furnish promptly to the Representative and to counsel for
the Underwriters a conformed copy of each Registration Statement as
originally filed and each amendment or supplement thereto filed prior to
the date hereof or relating to or covering the Underwritten Securities,
and a copy of each Prospectus filed with the Commission, including all
documents incorporated therein by reference and all consents and
exhibits filed therewith;
(b) To deliver promptly to the Representative such reasonable
number of the following documents as the Representative may request: (i)
conformed copies of the Registration Statements (excluding exhibits
other than the computation of the ratio of earnings to fixed charges,
the Indenture and this Agreement), (ii) each Prospectus and (iii) any
documents incorporated by reference in the Prospectus;
(c) During such period following the date hereof as, in the
opinion of counsel for the Underwriters, any Prospectus is required by
law to be delivered, to comply with the Act, the Exchange Act, the Trust
Indenture Act and the rules and regulations under each thereof, so as to
permit the completion of the distribution of the Underwritten Securities
as contemplated in this Agreement and in each Prospectus. If at any time
when a prospectus is required by the Act to be delivered in connection
with sales of the Underwritten Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the
reasonable opinion of counsel for the Underwriters or for the Company,
to amend any Registration Statement or amend or supplement any
Prospectus in order that such Prospectus will not include any untrue
statements of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser,
or if it shall be necessary, in the opinion of such counsel, at any such
time to amend any Registration Statement or amend or supplement any
Prospectus in order to comply with the requirements of the Act or the
Rules and Regulations, the Company will promptly prepare and file with
the Commission, subject to paragraph (d) below, such amendment or
supplement as may be necessary to correct such statement or omission or
to make any such Registration Statement or any such Prospectus comply
with such requirements, and the Company will furnish to the Underwriters
such number of copies of such amendment or supplement as the
Underwriters may reasonably request;
(d) Prior to filing with the Commission during the period referred
to in (c) above (i) any amendment or supplement to any Registration
Statement, (ii) any Prospectus or any amendment or supplement thereto or
(iii) any document incorporated by reference in any of the foregoing or
any amendment or supplement to such incorporated document, to furnish a
copy thereof to the Representative and to counsel for the Underwriters
and not to file any document that shall have been disapproved by the
Representative;
9
(e) To advise the Representative promptly (i) when any
post-effective amendment to any Registration Statement relating to or
covering the Underwritten Securities becomes effective or any supplement
to any Prospectus shall have been filed, (ii) of any comments from the
Commission or any request or proposed request by the Commission for an
amendment or supplement to any Registration Statement (insofar as the
amendment or supplement relates to or covers the Underwritten
Securities), to any Prospectus, to any document incorporated by
reference in any of the foregoing or for any additional information,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of any Registration Statement or any order directed to any
Prospectus or any document incorporated therein by reference or the
initiation or threat of any stop order proceeding or of any challenge to
the accuracy or adequacy of any document incorporated by reference in
any Prospectus, (iv) of receipt by the Company of any notification with
respect to the suspension of the qualification of the Underwritten
Securities for sale in any jurisdiction or the initiation or threat of
any proceeding for that purpose and (v) of the happening of any event
which makes untrue any statement of a material fact made in any
Registration Statement (insofar as such Registration Statement relates
to or covers the Underwritten Securities) or any Prospectus or which
requires the making of a change in any Registration Statement or any
Prospectus in order to make any material statement therein not
misleading;
(f) If, during the period referred to in (c) above, the Commission
shall issue a stop order suspending the effectiveness of any
Registration Statement, to make every reasonable effort to obtain the
lifting of that order at the earliest possible time;
(g) As soon as practicable, to make generally available to its
security holders and to deliver to the Representative an earnings
statement, conforming with the requirements of Section 11(a) of the Act,
covering a period of at least twelve months beginning after the latest
of (i) the most recent effective date of the registration statement
relating to part of the Underwritten Securities, (ii) the effective date
of the most recent post-effective amendment to the last Registration
Statement that became effective prior to the date of this Agreement and
(iii) the date of the Company's most recent Annual Report on Form 10-K
filed with the Commission prior to the date of this Agreement;
(h) So long as any of the Underwritten Securities are outstanding,
to furnish to the Representative copies of all reports and financial
statements furnished by the Company to each securities exchange on which
securities issued by the Company may be listed pursuant to requirements
of or agreements with such exchange or to the Commission pursuant to the
Exchange Act or any rule or regulation of the Commission thereunder;
(i) To endeavor to qualify the Underwritten Securities for offer
and sale under the securities laws of such jurisdictions as the
Representative may reasonably request and to maintain such
qualifications in effect for as long as may be required for the
distribution of
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the Underwritten Securities; provided, however, that the Company shall
not be obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject;
(j) To use its best efforts to obtain the listing of the
Underwritten Securities on the securities exchange, if any, set forth on
Schedule I (the "Stock Exchange") on or prior to the Delivery Date and
to cause such listing to be continued so long as any amount of the
Securities remains outstanding; to furnish from time to time any and all
documents, instruments, information and undertakings that may be
necessary in order to effect such listing; and to maintain the same
until none of the Underwritten Securities is outstanding or until such
time as payment of principal of and premium, if any, and interest on all
the Underwritten Securities has been duly provided for, whichever is
earlier; provided that if the Company can no longer reasonably maintain
such listing, the Company shall use its best efforts to obtain and
maintain the quotation for, or listing of, the Underwritten Securities
on such other securities exchange or exchanges as the Company may, with
the approval of the Representative, determine;
(k) To pay the costs incident to the authorization, issuance, sale
and delivery of the Underwritten Securities and any taxes payable in
that connection; the costs incident to the preparation, printing and
filing under the Act of the Registration Statements and any amendments,
supplements and exhibits thereto; the costs incident to the preparation,
printing and filing of any document and any amendments and exhibits
thereto required to be filed by the Company under the Exchange Act; the
costs of distributing the Registration Statements as originally filed
and each amendment and post-effective amendment thereof (including
exhibits), any Preliminary Prospectus, each Prospectus and any documents
incorporated by reference in any of the foregoing documents; the costs
of printing this Agreement and the Delayed Delivery Contracts, if any;
the fees and disbursements of the Company's counsel, accountants and
other advisors; the fees and expenses of the Trustee, including the fees
and disbursements of counsel for the Trustee in connection with the
Indenture and the Underwritten Securities, to the extent the Trustee or
its counsel, as the case may be, requires reimbursement thereof; the
costs of any filings with the National Association of Securities
Dealers, Inc.; fees paid to rating agencies in connection with the
rating of the Securities, including the Underwritten Securities; the
fees and expenses of qualifying the Underwritten Securities under the
securities laws of the several jurisdictions as provided in this
paragraph and of preparing and printing a Blue Sky Memorandum (including
fees of counsel to the Underwriters); the cost of listing the
Underwritten Securities on the Stock Exchange; and all other costs and
expenses incident to the performance of the Company's obligations under
this Agreement; provided that, except as provided in this paragraph and
in Paragraph 11 hereof, the Underwriters shall pay their own costs and
expenses, including the fees and
11
expenses of their counsel, any transfer taxes on the Underwritten
Securities which they may sell and the expenses of advertising any
offering of the Underwritten Securities made by the Underwriters;
(l) Until the termination of the offering of the Underwritten
Securities, to timely file all documents, and any amendments to
previously filed documents, required to be filed by the Company pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act;
(m) During the period beginning on the date hereof and continuing
to the Delivery Date, without the consent of the Representative, not to
offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company with maturities longer than one year, other
than the Underwritten Securities to the Underwriters;
(n) (i) Neither the Company nor the Significant Subsidiary shall
have sustained, except as described in or contemplated by the
Registration Statements and the Prospectus, any loss or interference
with its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, or (ii) there shall not have been
any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and the
Significant Subsidiary, otherwise than as described in or contemplated
by the Prospectus, the effect of which, in any such case described in
clause (i) or (ii), is, in the judgment of the Representative, so
material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities on
the terms and in the manner contemplated in the Prospectus;
(o) Subsequent to the execution and delivery of this Agreement,
(i) no downgrading shall have occurred in the rating accorded the
Company's debt securities by any "nationally recognized statistical
rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) of the Rules and Regulations and (ii) no such
organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating
of any of the Company's debt securities; and
(p) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or the American
Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter
market, shall have been suspended or minimum prices shall have been
established on any such exchange or such market by the Commission, by
such exchange or by any other regulatory body or governmental authority
having jurisdiction, (ii) a banking moratorium shall have been declared
by federal or state authorities, (iii) the United States shall have
become engaged in hostilities, there shall have been an escalation in
hostilities involving
12
the United States or there shall have been a declaration of a national
emergency or war by the United States or (iv) there shall have occurred
such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the
financial markets in the United States shall be such) as to make it, in
the judgment of a majority in interest of the several Underwriters,
impracticable or inadvisable to proceed with the public offering or
delivery of the Securities on the terms and in the manner contemplated
in the Prospectus.
8. Indemnification and Contribution. (a) The Company shall indemnify and
hold harmless each Underwriter, its officers and employees and each person, if
any, who controls any Underwriter within the meaning of the Act, from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of Securities), to which
that Underwriter, officer, employee or controlling person may become subject,
under the Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement of a material fact contained (A) in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any amendment or supplement
thereto, or (B) in any blue sky application or other document prepared or
executed by the Company (or based upon any written information furnished by the
Company) specifically for the purpose of qualifying any or all of the Securities
under the securities laws of any state or other jurisdiction (any such
application, document or information being hereinafter called a "Blue Sky
Application"), or the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact required to
be stated therein or necessary to make the statements therein not misleading,
and shall reimburse each Underwriter and each such officer, employee and
controlling person promptly upon demand for any legal or other expenses
reasonably incurred by that Underwriter, officer, employee or controlling person
in connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus, or in any such amendment or supplement, or in any Blue Sky
Application in reliance upon and in conformity with the written information
furnished to the Company through the Representative by or on behalf of any
Underwriter specifically for inclusion therein and described in Paragraph 8(e);
and provided further that as to any Preliminary Prospectus this indemnity
agreement shall not inure to the benefit of any Underwriter, its officers or
employees or any person controlling that Underwriter on account of any loss,
claim, damage, liability or action arising from the sale of Securities to any
person by that Underwriter if that Underwriter failed to send or give a copy of
the Prospectus, as the same may be amended or supplemented, to that person
within the time required by the Act, and the untrue statement or alleged untrue
statement of any material fact or omission or alleged omission to state a
material fact in such
13
Preliminary Prospectus was corrected in the Prospectus, unless such failure
resulted from non-compliance by the Company with Paragraph 7(c). For purposes of
the last proviso to the immediately preceding sentence, the term "Prospectus"
shall not be deemed to include the documents incorporated therein by reference,
and no Underwriter shall be obligated to send or give any supplement or
amendment to any document incorporated by reference in any Preliminary
Prospectus or the Prospectus to any person other than a person to whom such
Underwriter had delivered such incorporated document or documents in response to
a written request therefor. The foregoing indemnity agreement is in addition to
any liability which the Company may otherwise have to any Underwriter or to any
officer, employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, its officers and employees, each of its directors and
each person, if any, who controls the Company within the meaning of the Act,
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Company or any such director, officer or
controlling person may become subject, under the Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained (A) in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any amendment or supplement thereto, or (B) in any Blue Sky
Application or (ii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact required to
be stated therein or necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with the written information furnished to the Company through the
Representative by or on behalf of that Underwriter specifically for inclusion
therein and described in Paragraph 8(e), and shall reimburse the Company and any
such director, officer or controlling person for any legal or other expenses
reasonably incurred by the Company or any such director, officer or controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any liability
which any Underwriter may otherwise have to the Company or any such director,
officer or controlling person.
(c) Promptly after receipt by an indemnified party under this
Paragraph 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Paragraph 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Paragraph 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this
14
Paragraph 8. If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall not be
liable to the indemnified party under this Paragraph 8 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided, however,
that any indemnified party shall have the right to employ separate counsel in
any such action and to participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless (i) the employment thereof has been specifically authorized by the
indemnifying party in writing, (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, that the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at any
time for all such indemnified parties, which firm shall be designated in writing
by the Representative, if the indemnified parties under this Paragraph 8 consist
of any Underwriter or any of their respective officers, employees or controlling
persons, or by the Company, if the indemnified parties under this Paragraph
consist of the Company or any of the Company's directors, officers, employees or
controlling persons. No indemnifying party shall (i) without the prior written
consent of the indemnified parties (which consent shall not be unreasonably
withheld), 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, or (ii) be liable for any settlement
of any such action effected without its written consent (which consent shall not
be unreasonably withheld), but if settled with its written consent or if there
be a final judgment of the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss of liability by reason of such settlement or judgment.
15
(d) If the indemnification provided for in this Paragraph 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Paragraph 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from
the offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Underwriters on
the other with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other with respect to such
offering shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Securities purchased under this Agreement (before
deducting expenses) received by the Company, on the one hand, and the total
underwriting discounts and commissions received by the Underwriters with respect
to the shares of the Securities purchased under this Agreement, on the other
hand, bear to the total gross proceeds from the offering of the shares of the
Securities under this Agreement, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this Paragraph 8(d) were
to be determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation which does
not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in this
Paragraph 8(d) shall be deemed to include, for purposes of this Paragraph 8(d),
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Paragraph 8(d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
was offered to the public exceeds the amount of any damages which such
Underwriter has otherwise paid or become liable to pay by reason of any 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 Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute as
provided in this Paragraph 8(d) are several in proportion to their respective
underwriting obligations and not joint.
16
(e) The Underwriters severally confirm that the statements with
respect to the public offering of the Securities set forth on the cover page of,
and under the caption "Underwriting" in, the Prospectus are correct and
constitute the only information furnished in writing to the Company by or on
behalf of the Underwriters specifically for inclusion in the Registration
Statement and the Prospectus.
9. Termination. (a) The obligations of the Underwriters hereunder may be
terminated by the Representative by notice given to and received by the Company
prior to delivery of and payment for the Immediate Delivery Underwritten
Securities if, prior to that time, any of the events described in Paragraphs
7(n), 7(o) or 7(p) hereof shall have occurred or if the Underwriters shall
decline to purchase the Immediate Delivery Underwritten Securities for any
reason permitted under this Agreement.
(b) If this Agreement is terminated pursuant to this Paragraph 9, such
termination shall be without liability of any party to any other party except as
provided in Paragraph 11 hereof, and provided further that Paragraphs 1 and 8
shall survive such termination and remain in full force and effect.
10. Conditions of the Underwriters' Obligations. The respective
obligations of the Underwriters under the Agreement with respect to the
Underwritten Securities are subject to the accuracy, on the date hereof and on
the Delivery Date, of the representations and warranties of the Company
contained herein, to performance by the Company of its obligations hereunder,
and to each of the following additional terms and conditions applicable to the
Underwritten Securities.
(a) At or before the Delivery Date, no stop order suspending the
effectiveness of any Registration Statement nor any order directed to
any document incorporated by reference in any Prospectus shall have been
issued and prior to that time no stop order proceeding shall have been
initiated or threatened by the Commission and no challenge shall have
been made to the accuracy or adequacy of any document incorporated by
reference in any Prospectus; any request of the Commission for inclusion
of additional information in any Registration Statement or any
Prospectus or otherwise shall have been complied with; and after the
date hereof the Company shall not have filed with the Commission any
amendment or supplement to any Registration Statement or any Prospectus
(or any document incorporated by reference therein) that shall have been
disapproved by the Representative.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to the Delivery Date that any Registration Statement
or any Prospectus contains an untrue statement of a fact which, in the
opinion of counsel for the Underwriters, is material or omits to state a
fact which, in the opinion of such counsel, is material and is required
to be stated therein or is necessary to make the statements therein not
misleading.
17
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Underwritten
Securities and the Indenture and the form of the Registration
Statements, each Prospectus (other than financial statements and other
financial data) and all other legal matters relating to this Agreement
and the transactions contemplated hereby shall be satisfactory in all
respects to counsel for the Underwriters, and the Company shall have
furnished to such counsel all documents and information that such
counsel may reasonably request to enable it to pass upon such matters.
(d) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., Senior Vice President, General
Counsel and Secretary of the Company, shall have furnished to the
Representative his opinion addressed to the Underwriters and dated the
Delivery Date to the effect that:
(i) Each of the Company and the Significant Subsidiary has
been duly incorporated and is validly existing and remains a
subsisting corporation under the laws of their respective
jurisdictions of incorporation;
(ii) Each of the Company and the Significant Subsidiary is
duly qualified to do business and is in good standing as a foreign
corporation in all jurisdictions in which its ownership of property
or the conduct of its business requires such qualification (except
where the failure to so qualify would not have a Material Adverse
Effect), and has all power and authority necessary to own its
properties and conduct the business in which it is engaged as
described in the Prospectus;
(iii) No order issued by the Commission directed to any
document incorporated by reference in any Prospectus has been issued
and, to the knowledge of such counsel, no challenge has been made by
the Commission to the accuracy or adequacy of any such document;
(iv) Such counsel does not know of any litigation or any
governmental proceeding pending or threatened against the Company
which would affect the subject matter of this Agreement or is
required to be disclosed in any Prospectus (including the documents
incorporated by reference therein) which is not disclosed and
correctly summarized therein;
(v) To the best of such counsel's knowledge, the Company
is not in violation of its corporate charter or by-laws, or in
default under any material agreement, indenture or instrument; and
(vi) The execution, delivery and performance of this
Agreement and the Delayed Delivery Contracts, if any, and compliance
by the Company with the provisions of the Underwritten Securities
and the Indenture will not constitute a breach of, or result
18
in the creation or imposition of any lien, charge or encumbrance
upon any of the assets of the Company pursuant to the terms of, or
constitute a default under, any agreement, indenture or instrument
known to such counsel, or result in a violation of the corporate
charter or by-laws of the Company or, to the best of such counsel's
knowledge, any order, rule or regulation of any court or
governmental agency having jurisdiction over the Company or its
property.
In giving such opinion, such counsel need not express any opinion
regarding any order, consent or other authorization or approval which
may be legally required pursuant to any state securities law.
In rendering such opinion, such counsel may: (i) state that his
opinion is limited to matters governed by the federal laws of the United
States of America, the laws of the District of Columbia and the General
Corporation Law of the State of Delaware and that such counsel is not
admitted in the State of Delaware; and (ii) rely (to the extent such
counsel deems proper and specifies in his opinion), as to matters
involving the application of the laws of other jurisdictions upon the
opinion of other counsel of good standing, provided that such other
counsel is satisfactory to counsel for the Underwriters and furnishes a
copy of its opinion to the Representative.
(e) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Company, shall
have furnished to the Representative its opinion addressed to the
Underwriters and dated the Delivery Date, to the effect that:
(i) The Company and the Significant Subsidiary have been
duly incorporated and are validly existing and in good standing as
corporations under the laws of their respective jurisdictions;
(ii) The Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the Trust
Indenture Act and, assuming that the Indenture is a valid and
binding agreement of the Trustee, constitutes a valid and legally
binding instrument of the Company enforceable in accordance with its
terms;
(iii) The Immediate Delivery Underwritten Securities have
been duly authorized, executed and issued by the Company and,
assuming due authentication thereof by the Trustee and upon payment
and delivery in accordance with this Agreement, will constitute
valid and legally binding obligations of the Company enforceable in
accordance with their terms and entitled to the benefits of the
Indenture;
(iv) The Delayed Delivery Underwritten Securities, if any,
have been duly authorized and, when duly executed and issued by the
Company and, assuming due
19
authentication thereof by the Trustee and upon payment and delivery
by the respective purchasers thereof in accordance with the terms of
the related Delayed Delivery Contracts, will constitute valid and
legally binding obligations of the Company, enforceable in
accordance with their terms and entitled to the benefits of the
Indenture;
(v) The Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and, assuming that
the Delayed Delivery Contracts are the valid and binding agreements
of the purchasers thereunder, are valid and legally binding
obligations of the parties thereto;
(vi) The statements made in each Prospectus under the
caption "Description of Debt Securities" (or a comparable caption),
insofar as they purport to constitute summaries of the documents
referred to therein, constitute accurate summaries of the terms of
such documents in all material respects;
(vii) Each Registration Statement is effective under the
Act and, to the knowledge of such counsel, no stop order suspending
its effectiveness has been issued and no proceeding for that purpose
is pending or threatened by the Commission;
(viii) This Agreement has been duly authorized, executed and
delivered by the Company; and
(ix) The Company is not an "investment company" or an
entity "controlled" by an "investment company," as such terms are
defined in the 1940 Act.
Such counsel may state that the opinions set forth in paragraphs (ii),
(iii), (iv) and (v) above are subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
In rendering such opinion, such counsel may state that its opinion is
limited to matters governed by the federal laws of the United States of America,
the laws of the State of New York and the General Corporation Law of the State
of Delaware and that such counsel is not admitted in the State of Delaware.
Such counsel shall also have furnished to the Representative a written
statement, addressed to the Underwriters and dated the Delivery Date, in form
and substance satisfactory to the Representative, to the effect that (1) such
counsel has acted as counsel to the Company in connection with the preparation
of the Registration Statement (No. 333-_____ ) and the offer and
20
sale of the Securities (although the Company is also represented by its General
Counsel and, with respect to certain other matters, by other outside counsel);
(2) in the course of the preparation by the Company of the Registration
Statement (333- ) and the Prospectus, such counsel participated in conferences
with certain officers and employees of the Company, with representatives of KPMG
and with counsel to the Company; (3) prior to the Company's filing with the
Commission documents under the Exchange Act, such counsel reviewed such
documents; and (4) based on (a) such counsel's examination of the Registration
Statements, the Prospectus and the documents filed by the Company under the
Exchange Act, (b) such counsel's investigation made in connection with the
preparation of Registration Statement (333- ) and the Prospectus (excluding the
documents filed by the Company under the Exchange Act) and (c) such counsel's
participation in the conferences referred to in clause (2) of this paragraph
above, (i) that such counsel is of the opinion that the Registration Statements,
as of their respective effective dates, and each Prospectus, as of its issue
date, complied as to form in all material respects with the requirements of the
Act and the Trust Indenture Act and the applicable rules and regulations of the
Commission thereunder, and each document incorporated by reference in each
Prospectus as filed under the Exchange Act complied as to form when filed in all
material respects with the requirements of the Exchange Act and the applicable
rules and regulations of the Commission thereunder, except that in each case no
opinion need be expressed as to the financial statements and other financial
data contained or incorporated by reference therein, and (ii) such counsel has
no reason to believe that (I) any Registration Statements, on the dates they
became effective (or, with respect to such Registration Statements, if the
Company has filed an Annual Report on Form 10-K since their effective dates, the
date of the Company's most recent Annual Report on Form 10-K), contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading or that the Prospectus, as of its issue date and as of
the Delivery Date, contains any untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading or (II) any document incorporated by reference in the
Prospectus when they were filed with the Commission contained any untrue
statement of a material fact or omitted to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading, except that with respect to each of clauses (I)
and (II) above, such counsel may state that it expresses no belief with respect
to the financial statements or other financial data contained in or incorporated
by reference in the Registration Statements, the Prospectus or documents filed
by the Company under the Exchange Act. The foregoing opinion and statement may
be qualified by a statement to the effect that such counsel has not
independently verified the accuracy, completeness or fairness of the statements
made or included in the Registration Statements, the Prospectus or the documents
filed by the Company under the Exchange Act and takes no responsibility
therefor, except as and to the extent set forth in paragraph (v) above.
21
(f) The Company shall have furnished to the Representative a
certificate, dated the Delivery Date, of its Chairman of the Board, its
President or a Vice President and its chief financial officer stating
that:
(i) The representations, warranties and agreements of the
Company in Paragraph 1 are true and correct as of the Delivery Date;
the Company has complied with all its agreements contained herein;
and the conditions set forth in Paragraph 10(a) have been fulfilled;
(ii) (A) Except as described in or contemplated by the
Registration Statements and the Prospectus, neither the Company nor
any of its subsidiaries has sustained, any loss or interference with
its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, or (B) there has not been any
change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as described in or contemplated by the
Prospectus; and
(iii) They have carefully examined the Registration
Statements and the Prospectus and, in their opinion (A) the
Registration Statements, as of their respective effective dates, and
the Prospectus, as of its issue date, did not include any untrue
statement of a material fact and did not omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, and (B) since the effective date
of Registration Statement (No. 333-______), no event has occurred
which should have been set forth in a supplement or amendment to
either of the Registration Statements or the Prospectus.
(g) (i) Neither the Company nor any of its subsidiaries shall have
sustained, except as described in or contemplated by the Registration
Statements and the Prospectus, any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, or there shall not have been any change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus, the effect of which, in any
such case described in clause (i) or (ii), is, in the judgment of the
Representative, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the
Prospectus.
22
(h) If Underwritten Securities in bearer form are being delivered
by the Company on the Delivery Date in a jurisdiction other than the
United States, the Company shall have furnished to the Representative
such legal opinion or opinions as the Representative may reasonably
request addressed to the Underwriters and dated the Delivery Date, with
respect to matters relating to the offering, sale and delivery of the
Underwritten Securities in such jurisdiction.
(i) The Company shall have furnished to the Representative (i) a
letter of KPMG, addressed to the Underwriters and dated the date hereof
of the type described in the American Institute of Certified Public
Accountants' Statement on Auditing Standards No. 72 and covering such
specified financial statement items as counsel for the Underwriters may
reasonably have requested and (ii) a letter of KPMG, addressed to the
Underwriters and dated the Delivery Date, stating, as of the date of
such letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than five
days prior to the date of such letter), the conclusions and findings of
such firm with respect to the financial information and other matters
covered by its letter referred to in subclause (i) above, confirming in
all material respects the conclusions and findings set forth in such
prior letter.
(j) The Underwritten Securities shall have been accepted for
listing on the Stock Exchange (if any), subject to official notice of
issuance.
(k) At the Delivery Date, the Underwritten Securities shall be
rated at least "Baa3" by Moody's Investor's Service Inc. and "BBB-" by
Standard & Poor's Ratings Group, a division of ▇▇▇▇▇▇-▇▇▇▇, Inc., and
the Company shall have delivered to the Representative a letter dated
the Delivery Date, from each such rating agency, or other evidence
satisfactory to the Representative, confirming that the Underwritten
Securities have such ratings. Subsequent to the execution and delivery
of this Agreement, no downgrading shall have occurred in the rating
accorded the Company's debt securities by any "nationally recognized
statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) of the Rules and Regulations,
and no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating
of any of the Company's debt securities.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance satisfactory to
counsel for the Underwriters.
11. Reimbursement of Underwriters' Expenses. If the Company shall fail
to tender the Immediate Delivery Underwritten Securities for delivery to the
Underwriters for any reason permitted under this Agreement, or if the
Underwriters shall decline to purchase the Immediate
23
Delivery Underwritten Securities for any reason permitted under this Agreement
(other than pursuant to Paragraph 5 hereof), the Company shall reimburse the
Underwriters for reasonable fees and expenses of their counsel and for such
other out-of-pocket expenses as shall have been incurred by them in connection
with this Agreement and the proposed purchase of Immediate Delivery Underwritten
Securities and the solicitation of any purchases of the Delayed Delivery
Underwritten Securities, and upon demand the Company shall pay the full amount
thereof to the Representative. If this Agreement is terminated pursuant to
Paragraph 5 hereof by reason of the default of one or more Underwriters, the
Company shall not be obligated to reimburse any defaulting Underwriter on
account of those expenses.
12. Notices, etc. The Company shall be entitled to act and rely upon
any request, consent, notice or agreement by, or on behalf of, the
Representative. Any notice by the Company to the Underwriters shall be
sufficient if given in writing or by telegraph addressed to the Representative
at its address set forth in Schedule I hereto, and any notice by the
Underwriters to the Company shall be sufficient if given in writing or by
facsimile addressed to the Company at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇), Attention of the
Treasurer.
13. Persons Entitled to the Benefit of this Agreement. This Agreement
shall be binding upon the Underwriters, the Company, and their respective
successors. This Agreement and the terms and provisions hereof are for the sole
benefit of only those persons, except that (a) the representations, warranties,
indemnities and agreements of the Company contained in this Agreement shall also
be deemed to be for the benefit of the person or persons, if any, who control
any Underwriter within the meaning of Section 15 of the Act, and (b) the
indemnity agreement of the Underwriters contained in Paragraph 8 hereof shall be
deemed to be for the benefit of directors of the Company, officers of the
Company who have signed any Registration Statement and any person controlling
the Company. Nothing in this Agreement is intended or shall be construed to give
any person, other than the persons referred to in this Paragraph, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
14. Certain Definitions. For purposes of this Agreement, (a) "business
day" means any day on which the New York Stock Exchange, Inc. is open for
trading and (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules
and Regulations.
15. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of New York.
16. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
24
17. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[The rest of this page is left blank intentionally; the signature page follows.]
25
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement shall represent a binding agreement among the Company and the
several Underwriters.
Very truly yours,
POLAROID CORPORATION
By
-------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed
and accepted as of the date first above
written.
[ ]
By
-----------------------------
Name:
Title:
For itself and as Representative of the other
Underwriters named in Schedule II to the foregoing
Agreement.
SCHEDULE I
Underwriting Agreement dated , 1998.
Registration Statement Nos. 333-0791 and 333- .
Representatives and Addresses:
Underwritten Securities
Designation:
Principal amount:
Indenture:
Date of Maturity:
Interest Rate:
Purchase Price:
Redemption Provisions:
Authorized Denominations:
Stock Exchange Listing:
Delivery Date, Time and Location:
SCHEDULE II
Principal
Amount of
Underwritten
Name of Underwriter Securities
------------------------------------------------------------- ----------------
............................................................. $
............................................................. $
Total ---------
$
=========
EXHIBIT A
$
POLAROID CORPORATION
DEBT SECURITIES
DELAYED DELIVERY CONTRACT
[DATE]
POLAROID CORPORATION
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
The undersigned hereby agrees to purchase from Polaroid Corporation,
Inc., a Delaware corporation ("Company"), and the Company hereby agrees to sell
to the undersigned,
$
principal amount of the Company's above-captioned securities ("Securities"),
offered by the Company's prospectus dated ________, 199 , as supplemented by the
prospectus supplement dated ________, 199 (collectively, the "Prospectus"),
receipt of a copy of which is hereby acknowledged, at a purchase price of ___%
of the principal amount thereof plus accrued interest from , 199 to the Delivery
Date (as defined in the next paragraph) and on the further terms and conditions
set forth in this Contract.
Payment for and delivery of the Securities to be purchased by the
undersigned shall be made on ________, 199 , herein called the "Delivery Date".
At 10:00 A.M., New York time, on the Delivery Date, the Securities to be
purchased by the undersigned hereunder will be delivered by the Company to the
undersigned, and the undersigned will accept delivery of such Securities and
will make payment to the Company of the purchase price therefor, at the office
of ________. Payment will be certified or official bank check payable in
next-day funds settled through the New York Clearing House to or upon the order
of the Company.
This Contract will terminate and be of no further force and effect after
________, 199 , unless (i) on or before such date it shall have been executed
and delivered by both parties hereto or (ii) the Company shall have sold to the
Underwriters named in the Prospectus the Immediate Delivery Underwritten
Securities (as defined in the Underwriting Agreement referred to in the
Prospectus) and the Company shall have mailed or delivered to the undersigned at
its address set forth below a notice to that effect, stating the date of the
occurrence thereof, accompanied by copies of the opinion of counsel for the
Company delivered to such Underwriters pursuant to Paragraph 10(d) of the
Underwriting Agreement.
The obligation of the undersigned to accept delivery and make payment
for the Securities on the Delivery Date will be subject to the condition that
the Securities shall not, on the Delivery Date, be an investment prohibited by
the laws of the jurisdiction to which the undersigned is subject, the
undersigned hereby representing that such an investment is not so prohibited on
the date hereof. This Contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of any Delayed Delivery Contract (as
defined in said Underwriting Agreement) is in the Company's sole discretion and,
without limiting the foregoing, need not be on a first-come, first-served basis.
If this Contract is acceptable to the Company, it is requested that the Company
sign the form of acceptance below and mail or deliver one of the counterparts
hereof to the undersigned at its address set forth below. This will become a
binding contract between the Company and the undersigned when such counterpart
is so mailed or delivered.
Very truly yours,
By
--------------------------
Name:
Title:
Address:
Accepted as of , 199 .
POLAROID CORPORATION
By
---------------------
Name:
Title: