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EXHIBIT 1(a)
FORM OF AGREEMENT
▇▇▇▇▇▇▇ CHEMICAL COMPANY
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UNDERWRITING AGREEMENT
________ __, 199_
To the Underwriters Named
in Schedule I Hereto:
▇▇▇▇▇▇▇ Chemical Company, a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") an aggregate of _________ shares of [Common Stock of the Company
("Common Stock")], [name of Series Preferred Stock ("Preferred Stock")] [and, at
the election of the Underwriters, up to _________ additional shares of [Common
Stock] [Preferred Stock]]. The __________ shares of [Common Stock] [Preferred
Stock] to be sold are herein called the "Firm Shares" and the _______ additional
shares of [Common Stock] [Preferred Stock] to be sold are herein called the
"Optional Shares". The Firm Shares and the Optional Shares that the Underwriters
elect to purchase pursuant to Section 2 hereof are herein collectively called
the "Shares".
1. The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(a) A registration statement on Form S-3 (File No.
333-________) (the "Initial Registration Statement") in respect of the
Shares has been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any
post-effective amendments thereto, each in the form heretofore
delivered to the Underwriters, including all documents incorporated by
reference therein, has been declared effective by the Commission in
such form; other than a registration statement, if any, increasing the
size of the offering (a "Rule 462(b) Registration Statement") filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended
(the "Act"), which became effective upon filing, no other document with
respect to the Initial Registration Statement or any document
incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission (other than prospectuses
filed pursuant to Rule 424 of the rules and regulations of the
Commission under the Act , each in the form heretofore delivered to the
Underwriters); and no stop order suspending the effectiveness of the
Initial Registration Statement, any post-effective amendment thereto or
the Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included
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in the Initial Registration Statement or filed with the Commission
pursuant to Rule 424(a) under the Act being hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any, including
all exhibits thereto and (i) the information, if any, contained in the
form of final prospectus filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 4(a) hereof and deemed
by virtue of Rule 430A under the Act to be part of such Initial
Registration Statement at the time it was declared effective and (ii)
the documents incorporated by reference in the prospectus contained in
such registration statement at the time such part of such registration
statement became effective, but excluding Form T-1, each as amended at
the time such part of such registration statement became effective or
such part of the Rule 462(b) Registration Statement, if any, became or
hereafter becomes effective, being hereinafter collectively called the
"Registration Statement"; such final prospectus, in the form first
filed pursuant to Rule 424(b) under the Act, being hereinafter called
the "Prospectus"; any reference herein to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under
the Act, as of the date of such Preliminary Prospectus or Prospectus,
as the case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated
by reference in such Preliminary Prospectus or Prospectus, as the case
may be; any reference to any amendment to the Registration Statement
shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act
after the effective date of the Initial Registration Statement that is
incorporated by reference in the Registration Statement; and any
reference to the Prospectus as amended or supplemented shall be deemed
to refer to the Prospectus as amended or supplemented in relation to
the Securities in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 4(a)
hereof, including any documents incorporated by reference therein as of
the date of such filing);
(b) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder, and did not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by an Underwriter through you expressly for use therein;
(c) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder, and none of such
documents
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contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
through you expressly for use therein;
(d) The Registration Statement and the Prospectus conform,
and any further amendments or supplements to the Registration Statement
or the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date
as to the Registration Statement and any amendment thereto and as of
the applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
through you expressly for use therein;
(e) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus 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 which would be
reasonably likely to have a material adverse effect on the financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock or
long-term debt of the Company and its subsidiaries taken as a whole or
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 taken as a whole,
otherwise than as set forth or contemplated in the Prospectus;
(f) The Company and its subsidiaries have good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as
are described in the Prospectus or such as are not material and do not
interfere with the use made and proposed to be made of such property by
the Company and its subsidiaries; and any real property and buildings
held under lease by the Company and its subsidiaries
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are held by them under valid, subsisting and enforceable leases with
such exceptions as are not material and do not interfere with the use
made and proposed to be made of such property and buildings by the
Company and its subsidiaries;
(g) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction; and each subsidiary of the Company
has been duly incorporated and is validly existing as a corporation in
good standing under the laws of its jurisdiction of incorporation;
(h) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued and are
fully paid and non-assessable; and all of the issued shares of capital
stock of each subsidiary of the Company are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims and all of the issued shares of capital stock of
each subsidiary of the Company that is a significant subsidiary, within
the meaning of such term as set forth in Rule 1-02 of Regulation S-X,
have been duly and validly authorized and issued, are fully paid and
non-assessable (except for directors' qualifying shares);
[(i) Insert if Common Stock--The Firm Shares and any
Optional Shares have been duly and validly authorized and, when the
Firm Shares are issued and delivered pursuant to this Agreement and in
the case of any Optional Shares, pursuant to Over-allotment Options (as
defined in Section 2 hereof) with respect to such Shares, such Shares
will be duly and validly issued and fully paid and nonassessable; and
the Shares conform to the description thereof contained in the
Registration Statement and Prospectus;]
[(i) Insert if Preferred Stock--The Firm Shares and any
Optional Shares have been duly and validly authorized and, when the
Firm Shares are issued and delivered pursuant to this Agreement and in
the case of any Optional Shares, pursuant to Over-allotment Options (as
defined in Section 2 hereof) with respect to such Shares, such Shares
will be duly and validly issued and fully paid and nonassessable and
will have the rights set forth in the Company's Certificate of
Incorporation, as amended, including the applicable certificate of
designations filed under Section 151 of the General Corporation Law of
the State of Delaware (the "Certificate of Designations") and which
will be timely filed; and the Shares will conform to the description
thereof in the Prospectus;]
[Insert if Shares are convertible into or exchangeable for
Common Stock--The shares of Common Stock issuable upon [conversion]
[exchange] of such Preferred Stock have been duly and validly
authorized and reserved for issuance upon such [conversion] [exchange],
and, when issued and delivered upon such [conversion] [exchange], will
be
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duly and validly issued and will be fully paid and nonassessable; the
stockholders of the Company have no preemptive rights with respect to
such Common Stock issuable upon [conversion] [exchange] of such
Preferred Stock; and such shares of Common Stock conform to the
description of the Common Stock contained in the Registration Statement
and the Prospectus;]
(j) The issue and sale of the Shares [and any shares of
________________ issuable upon conversion, exchange or exercise of the
Shares] and the compliance by the Company with all of the provisions of
this Agreement and each Over-allotment Option and the consummation of
the transactions contemplated herein and therein will not conflict with
or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject except, in
each case, for such breaches, violations and defaults that would not,
individually or in the aggregate, be reasonably likely to have a
material adverse effect on the financial position, stockholders'
equity, results of operations or business prospects of the Company and
its subsidiaries taken as a whole, nor will such action result in any
violation of the provisions of the Certificate of Incorporation or
By-laws of the Company or any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties; and
no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the issue and sale of the Shares [and any Shares of
_______________ issuable upon conversion, exchange or exercise of the
Shares] or the consummation by the Company of the transactions
contemplated by this Agreement or the Over-allotment Options, except
such as have been, or will have been prior to the Time of Delivery (as
defined in Section 3 hereof), obtained under the Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares and any shares of the
___________ issuable upon conversion, exchange, or exercise of the
Shares by the Underwriters;
(k) Neither the Company nor any of its subsidiaries (i)
has received notice or has actual knowledge of any claim, demand,
obligation, cause of action, accusation, allegation, order, violation,
damage, injury, judgment, penalty or fine which would, individually or
in the aggregate, be reasonably likely to have a material adverse
effect on the financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole
resulting from (A) the violation or alleged violation of any laws
relating to air pollution, water pollution, noise control and/or
handling discharge, disposal or recovery of on-site or off-site
hazardous substances or materials, (B) any noncompliance with or
violation of the requirements of any environmental law, (C) the release
or threatened release of any toxic or hazardous waste, substance or
constituent or (D) any other Environmental Matter (as hereinafter
defined), or (ii) is or will be liable in connection with the release
or threatened release of any toxic or hazardous waste, substance or
constituent, which liability would, individually or in the aggregate,
be reasonably likely to have a material adverse effect on the financial
position, stockholders'
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equity or results of operations of the Company and its subsidiaries
taken as a whole, or (iii) has received notice or has actual knowledge
of any governmental investigation seeking remedial action in connection
with a release or threatened release of any toxic or hazardous waste,
substance or constituent for which the Company or any of its
subsidiaries may be liable and which (if the Company or any of its
subsidiaries were so liable) would be reasonably likely to have a
material adverse effect on the financial position, stockholders' equity
or results of operations of the Company and its subsidiaries taken as a
whole; "Environmental Matter" means (I) the release of any amount of
toxic or hazardous waste or substances, pollutant or contaminant into
the environment, (II) the management, including the generation,
handling, treatment, storage, transport, discharge or disposal or
recovery, whether on-site or off-site, of any solid wastes, toxic or
hazardous wastes, hazardous substances, pollutants or contaminants,
(III) the past and present use of surface waters or groundwater and
(IV) the construction or maintenance of any dams or levees;
(l) The Company and its subsidiaries own or possess the
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names (collectively, "patent and
proprietary rights") presently employed by them in connection with the
business now operated by them, and the patent and proprietary rights
necessary in connection with the business proposed to be operated by
them, as described in the Prospectus, and neither the Company nor any
of its subsidiaries has received any notice or is otherwise aware of
any infringement of or conflict with asserted rights of others with
respect to any patent or proprietary rights referred to above, or of
any facts which would render any such patent and proprietary rights
invalid or inadequate to protect the interest of the Company or any of
its subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy, would, individually or in the aggregate, be reasonably
likely to result in any material adverse change in the financial
position, stockholders' equity, results of operations or business
prospects of the Company and its subsidiaries taken as a whole;
(m) Other than as set forth in the Prospectus, there are
no legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which would,
individually or in the aggregate, be reasonably likely to have a
material adverse effect on the financial position, stockholders'
equity, results of operations or business prospects of the Company and
its subsidiaries taken as a whole; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and
(n) [PricewaterhouseCoopers LLP], who have certified
certain financial statements of the Company and its subsidiaries, are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder.
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(o) The Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company" or
an entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act"); and
(p) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes.
2. Subject to the terms and conditions herein set forth, the
Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
the purchase price and on the other terms set forth in Schedule II hereto, the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto and, (b) in the event and to the extent that the Underwriters
shall exercise the election to purchase Optional Shares, as provided below, the
Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company at
the purchase price to the Underwriters set forth in Schedule II hereto that
portion of the number of Optional Shares as to which such election shall have
been exercised.
The Company hereby grants to each of the Underwriters the right (an
"Over-allotment Option") to purchase at their election up to the number of
Optional Shares set forth opposite the name of such Underwriter in Schedule I
hereto on the terms referred to in the paragraph above for the sole purpose of
covering over-allotments in the sale of the Firm Shares. Any such election to
purchase Optional Shares may be exercised by written notice from you to the
Company given within a period of 30 calendar days after the date of this
Agreement, setting forth the aggregate number of Optional Shares to be purchased
and the date on which such Optional Shares are to be delivered, as determined by
you, but in no event earlier than the First Time of Delivery (as defined in
Section 3 hereof) or, unless you and the Company otherwise agree in writing, no
earlier than two or later than ten business days after the date of such notice.
3. Certificates for the Firm Shares and the Optional Shares to
be purchased by each Underwriter hereunder, in definitive form to the extent
practicable, and in such authorized denominations and registered in the name of
[a nominee of The Depository Trust Company] [other name] as described in the
Prospectus, shall be delivered by or on behalf of the Company to you for the
account of such Underwriter, against payment by such Underwriter or on its
behalf of the purchase price therefor by [wire transfer of immediately available
funds] [other method to be specified], (i) with respect to the Firm Shares, all
at the office set forth on Schedule II hereto on the date set forth therein or
at such other time and date as you and the Company may agree upon in writing,
such time and date being herein called the "First Time of Delivery" and (ii)
with respect to the Optional Shares, if any, in the manner and at the time and
date specified by you in the written notice given by your election to purchase
such Optional Shares, or at such other time and date as you and the Company may
agree upon in writing, such time and date, if not the First Time of Delivery,
herein called the "Second Time of Delivery". Each such time and date for
delivery is herein called a "Time of Delivery". [Such certificates will be made
available for checking and
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packaging at least twenty-four hours prior to such Time of Delivery at the
office of [The Depository Trust Company, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, New York]].
4. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you
and to file such Prospectus pursuant to Rule 424(b) under the Act not
later than the Commission's close of business on the second business
day following the execution and delivery of this Agreement, or, if
applicable, such other time as may be required by Rule 430A(a)(3) under
the Act; to make no further amendment or any supplement to the
Registration Statement or Prospectus prior to any Time of Delivery for
such Shares which shall be disapproved by you promptly after reasonable
notice thereof; to advise you, promptly after it receives notice
thereof, of the time when the Registration Statement, or any amendment
thereto, has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish you
with copies thereof; to file promptly all reports and any definitive
proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the
offering or sale of such Shares; to advise you, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus relating to the Shares [and any
shares of _____________ issuable upon conversion, exercise or exchange
of the Shares], of the suspension of the qualification of such Shares
[and any shares of ____________ issuable upon conversion, exercise or
exchange of the Shares] for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any stop order or of
any order preventing or suspending the use of any Preliminary
Prospectus or Prospectus or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as you
may reasonably request to qualify such Shares [and any shares of
____________ issuable upon conversion, exercise or exchange of the
Shares] for offering and sale under the securities laws of such
jurisdictions as you may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Shares [and any shares of ____________ issuable
upon conversion, exercise or exchange of the Shares], provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time on the New
York Business Day next succeeding the date of this Agreement and from
time to time, to furnish the Underwriters with copies of the Prospectus
in New York City, in such quantities as you may reasonably request,
and, if the delivery of a prospectus is required at any time prior to
the expiration of nine months after the time of issue of the Prospectus
in connection with
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the offering or sale of the Shares and if at such time any event shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such same period to amend
or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply
with the Act or the Exchange Act, to notify you and upon your request
to file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as you may
from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance; in case any Underwriter is required
to deliver a prospectus in connection with sales of any of the Shares
at any time nine months or more after the time of issue of the
Prospectus, upon your request but at the expense of such Underwriter,
to prepare and deliver to such Underwriter as many copies as you may
request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act; and "New York Business Day" shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in New York are generally authorized or
obliged by law or executive order to close;
(d) To make generally available to its securityholders as
soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in
Rule 158(c)), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and
the rules and regulations of the Commission thereunder (including, at
the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and
continuing to the later of (i) the termination of trading restrictions
for the Shares, as notified to the Company by you and (ii) the last
Time of Delivery, not to offer, sell, contract to sell or otherwise
dispose of any securities of the Company that are substantially similar
to the Shares, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to
receive stock or any such substantially similar securities (other than
pursuant to employee stock option plans existing on, or upon the
conversion of convertible or exchangeable securities outstanding as of,
the date hereof) without your prior written consent;
(f) During a period of five years from the effective date
of the Registration Statement, to furnish to you copies of all reports
or other communications (financial or other) furnished to stockholders,
and deliver to you (i) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which the Shares or
any class of securities of the Company is listed; and (ii) such
additional non-confidential information concerning the business and
financial condition of the Company as you may from time to time
reasonably request (such financial statements to be on a consolidated
basis to the extent the accounts of the
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Company and its subsidiaries are consolidated in reports furnished to
its stockholders generally or to the Commission); [and]
[(g) Insert if Shares are convertible into Common Stock--
To reserve and keep available at all times, free of preemptive rights,
shares of Common Stock for the purpose of enabling the Company to
satisfy any obligations to issue shares of Common Stock upon conversion
of the Preferred Stock]; [and]
[(h) To use its best efforts to list, subject to notice of
issuance, the Shares [and shares of Common Stock issuable upon
conversion of the Shares] on the New York Stock Exchange or such other
exchange on which the Company's Common Stock is then listed; and]
(i) If the Company elects to rely upon Rule 462(b), the
Company shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 p.m., Washington,
D.C. time, on the date of this Agreement, and the Company shall at the
time of filing either pay to the Commission the filing fee for the Rule
462(b) Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Act.
5. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Blue Sky Memorandum,
closing documents (including compilations thereof), and any other documents in
connection with the offering, purchase, sale and delivery of the Shares [and any
shares of ____________ issuable upon conversion, exercise or exchange of the
Shares]; (iii) all expenses in connection with the qualification of the Shares
[and any shares of ____________ issuable upon conversion, exercise or exchange
of the Shares] for offering and sale under state securities laws as provided in
Section 4(b) hereof, including the reasonable fees and disbursements of counsel
for the Underwriters in connection with such qualification and in connection
with the Blue Sky and legal investment surveys; [(iv) any filing fees incident
to, and the fees and disbursements of counsel for the Underwriters in connection
with, any required reviews by the National Association of Securities Dealers,
Inc. of the terms of the sale of the Shares;] (v) the cost of preparing the
certificates for the Shares [and any shares of ____________ issuable upon
conversion, exercise or exchange of the Shares]; (vi) the fees and expenses of
any Registrar, any Transfer Agent, Dividend Disbursing Agent, or any Calculation
Agent and any agent of any Registrar, Transfer Agent, Dividend Disbursing Agent,
or Calculation Agent and the fees and disbursements of counsel for any such
persons in connection with any Calculation Agent Agreement and the Shares; (vii)
all other costs and expenses incident to the performance of its obligations
hereunder and under any Over-allotment Options which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, Section 7 and Section 10 hereof, the
Underwriters will pay all of their own costs and expenses,
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including the fees of their counsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected with any offers they
may make.
6. The obligations of the Underwriters hereunder shall be
subject, in their discretion, to the condition that all representations and
warranties and other statements of the Company herein are, at and as of each
Time of Delivery, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 4(a) hereof; if the Company has elected
to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall
have become effective by 10:00 p.m., Washington, D.C. time, on the date
of this Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened
by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) [▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇], counsel for the Underwriters,
shall have furnished to you such opinion or opinions, dated the Time of
Delivery, with respect to the incorporation of the Company, the
validity of the Shares [and any shares of __________________ issuable
upon conversion, exchange or exercise of the Shares], if any, the
Registration Statement, the Prospectus, and other related matters as
you may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to
pass upon such matters;
(c) [▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, General Counsel of the Company],
shall have furnished to you his written opinion (a draft of each such
opinion is attached as Annex II hereto), dated the Time of Delivery, in
form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the State of Delaware, with power and authority (corporate and
other) to own its properties and conduct its business as
described in the Prospectus;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of
capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable;
and the Shares conform to the description thereof in the
Prospectus as amended or supplemented;
(iii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as
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to require such qualification, or is subject to no material
liability or disability by reason of the failure to be so
qualified in any such jurisdiction (such counsel being
entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect of matters of fact
upon certificates of officers of the Company, provided that
such counsel shall state that they believe that both you and
they are justified in relying upon such opinions and
certificates);
(iv) To the best of such counsel's knowledge and other
than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which would,
individually or in the aggregate, be reasonably likely to have
a material adverse effect on the financial position,
stockholders' equity, results of operations or business
prospects of the Company and its subsidiaries taken as a
whole, and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(v) This Agreement has been duly authorized, executed and
delivered by the Company;
(vi)[(-) Insert if Common Stock--The Shares have been
duly authorized and, when issued and delivered to and paid for
by the Underwriters in accordance with the terms of the
Underwriting Agreement, will be validly issued, fully paid and
nonassessable; and the Shares conform in all material respects
to the description thereof contained in the Registration
Statement and in the Prospectus;]
[(-) Insert if Preferred Stock--The Shares have been duly
authorized and, when issued and delivered to and paid for by
the Underwriters in accordance with the terms of the
Underwriting Agreement, will be validly issued, fully paid and
nonassessable and will have the rights set forth in the
Company's Certificate of Incorporation, as amended, including
the Certificate of Designations; the Shares conform in all
material respects to the description thereof contained in the
Registration Statement and Prospectus;]
[(-) The Certificate of Designations has been filed with
the Secretary of State of the State of Delaware in accordance
with Delaware General Corporation Law;]
[Insert if Shares are convertible into or exchangeable
for Common Stock--The shares of Common Stock issuable upon
[conversion] [exchange] of such Shares in accordance with the
terms of the Certificate of Designations and the Shares have
been duly authorized and reserved for issuance upon such
[conversion] [exchange], and, when issued and delivered upon
such [conversion] [exchange], will be duly authorized and
validly issued and will be fully paid and non-assessable; the
stockholders of the Company have no preemptive rights with
respect to such Common Stock issuable upon [conversion]
[exchange] of such Shares; and such shares of Common Stock
conform in all material respects to the
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description of the Common Stock contained in the Registration
Statement and the Prospectus and the Shares will conform in
all material respects to the description thereof contained in
the Registration Statement and Prospectus;]
(vii) The issue and sale of the Shares and the compliance
by the Company with all of the provisions of the Shares and
this Agreement and the Over-allotment Options and the
consummation of the transactions contemplated herein and
therein will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such
counsel to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject except, in each case,
for such breaches, violations and defaults that would not,
individually or in the aggregate, be reasonably likely to have
a material adverse effect on the financial position,
stockholders' equity, results of operations or business
prospects of the Company and its subsidiaries taken as a
whole, nor will such actions result in any violation of the
provisions of the Certificate of Incorporation or By-laws of
the Company or any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or
body having jurisdiction over the Company or any of its
properties;
(viii) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale
of the Shares [and shares of ___________ issuable upon
conversion, exercise or exchange of the Shares] or the
consummation by the Company of the transactions contemplated
by this Agreement, except such as have been obtained under the
Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters;
(ix) Neither the Company nor any of its subsidiaries (a)
has received notice or has actual knowledge of any claim,
demand, obligation, cause of action, accusation, allegation,
order, violation, damage, injury, judgment, penalty or fine
which would, individually or in the aggregate, be reasonably
likely to have a material adverse effect on the financial
position, stockholders' equity or results of operations of the
Company and its subsidiaries taken as a whole resulting from
(w) the violation or alleged violation of any laws relating to
air pollution, water pollution, noise control and/or handling
discharge, disposal or recovery of on-site or off-site
hazardous substances or materials, (x) any noncompliance with
or violation of the requirements of any environmental law, (y)
the release or threatened release of any toxic or hazardous
waste, substance or constituent or (z) any other Environmental
Matter, or (b) is or will be liable in connection with the
release or threatened release of any toxic or hazardous waste,
substance or constituent, which liability would, individually
or in the aggregate, be reasonably likely to have a material
adverse effect on the financial position, stockholders'
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equity or results of operations of the Company and its
subsidiaries taken as a whole, or (c) has received notice or
has actual knowledge of any governmental investigation seeking
remedial action in connection with a release or threatened
release of any toxic or hazardous waste, substance or
constituent for which the Company or any of its subsidiaries
may be liable and which (if the Company or any of its
subsidiaries were so liable) would be reasonably likely to
have a material adverse effect on the financial position,
stockholders' equity or results of operations of the Company
and its subsidiaries taken as a whole;
(x) The Company and its subsidiaries own or possess the
patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems
or procedures), trademarks, service marks and trade names
(collectively, "patent and proprietary rights") presently
employed by them in connection with the business now operated
by them, and the patent and proprietary rights necessary in
connection with the business proposed to be operated by them,
as described in the Prospectus, and neither the Company nor
any of its subsidiaries has received any notice or is
otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any patent or
proprietary rights referred to above, or of any facts which
would render any such patent and proprietary rights invalid or
inadequate to protect the interest of the Company or any of
its subsidiaries therein, and which infringement or conflict
(if the subject of any unfavorable decision, ruling or
finding) or invalidity or inadequacy, individually or in the
aggregate, would be reasonably likely to result in any
material adverse change in the financial condition,
stockholders' equity or results of operations of the Company
and its subsidiaries taken as a whole;
(xi) The Company is not an "Investment Company" or an
entity "controlled" by an "Investment Company", as such terms
are defined in the Investment Company Act;
(xii) The documents incorporated by reference in the
Prospectus or any further amendment or supplement thereto made
by the Company prior to the Time of Delivery (other than the
financial statements and financial data and related schedules
therein, as to which such counsel need express no opinion),
when they became effective or were filed with the Commission,
as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission
thereunder; and such counsel has no reason to believe that any
of such documents, when such documents became effective or
were so filed, as the case may be, contained, in the case of
a registration statement which became effective under the Act,
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, or, in the case of
other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a material
fact or omitted to state a material fact necessary in order to
make the statements therein,
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in the light of the circumstances under which they were made
when such documents were so filed, not misleading; and
(xiii) The Registration Statement and the Prospectus and
any further amendments and supplements thereto made by the
Company prior to the Time of Delivery (other than the
financial statements and financial data and related schedules
therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the
requirements of the Act and the rules and regulations
thereunder; such counsel has no reason to believe that, as of
its effective date, the Registration Statement or any further
amendment thereto made by the Company prior to the Time of
Delivery (other than the financial statements and financial
data and related schedules therein, as to which such counsel
need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading or that, as of its date, the Prospectus or any
further amendment or supplement thereto made by the Company
prior to the Time of Delivery (other than the financial
statements and financial data and related schedules therein,
as to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in
light of the circumstances in which they were made, not
misleading or that, as of the Time of Delivery, either the
Registration Statement or the Prospectus or any further
amendment or supplement thereto made by the Company prior to
the Time of Delivery (other than the financial statements and
financial data and related schedules therein, as to which such
counsel need express no opinion) contains an untrue statement
of a material fact or omits to state a material fact necessary
to make the statements therein, in light of the circumstances
in which they were made not misleading; and such counsel does
not know of any amendment to the Registration Statement
required to be filed or of any contracts or other documents of
a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by
reference into the Prospectus or required to be described in
the Registration Statement or the Prospectus which are not
filed or incorporated by reference or described as required;
which opinion may be limited to the federal laws of the United States,
the General Corporation Law of the State of Delaware, and the laws of
the States of New York and Tennessee;
(d) On each of the date hereof and at the Time of
Delivery, [PricewaterhouseCoopers LLP] shall have furnished to you a
letter, dated the date of delivery thereof, in form and substance
satisfactory to you, to the effect set forth in Annex I hereto (the
executed copy of the letter delivered prior to the execution of this
Agreement is attached as Annex I(a) hereto and a draft of the form of
letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of Delivery
is attached as Annex I(b) hereto);
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(e) (i) Neither the Company nor any of its subsidiaries
shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in 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, otherwise
than as set forth or contemplated in the Prospectus, and (ii) since the
respective dates as of which information is given in the Prospectus
there shall not have been any change in the capital stock or long-term
debt of the Company or any of its subsidiaries or 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 your
judgment so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the
Prospectus;
(f) On or after the date hereof (i) no downgrading shall
have occurred in the rating accorded the Company's debt securities or
preferred stock by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes
of Rule 436(g)(2) under the Act 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 or preferred stock;
(g) On or after the date hereof there shall not have
occurred any of the following: (i) a suspension or material limitation
in trading in securities generally on the New York Stock Exchange; (ii)
a general moratorium on commercial banking activities in New York
declared by either Federal or New York State authorities; or (iii) the
outbreak or escalation of hostilities involving the United States or
the declaration by the United States of a national emergency or war, if
the effect of any such event specified in this clause (iii) in your
judgment makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Firm Shares or Optional Shares
or both on the terms and in the manner contemplated by the Prospectus;
[(-) The Shares at each Time of Delivery shall have been
duly listed;]
(h) The Company shall have complied with the provisions of
Section 4(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of the Agreement;
and
(i) The Company shall have furnished or caused to be
furnished to you at each Time of Delivery certificates of officers of
the Company satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of each
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to each Time of
Delivery, as to the matters set forth in subsections (a) and (e) of
this Section and as to such other matters as you may reasonably
request.
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7. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment 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 will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim 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 or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through you expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment 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,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through you expressly
for use therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection
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with the defense thereof other than reasonable costs of investigation. Unless an
indemnifying party elects not to assume or participate in the defense of an
action, such indemnifying party shall not be liable for any settlement of such
action by an indemnified party without the prior written consent of the
indemnifying party. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability or claims that are the subject matter of
such proceeding.
(d) If the indemnification provided for in this Section 7
is unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is 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. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions 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 shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, 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, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were 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 account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters'
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obligations in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 7
shall be in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section 7 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company
(including any person who, with his or her consent, is named in the Registration
Statement as about to become a director of the Company) and to each person, if
any, who controls the Company within the meaning of the Act.
8. (a) If any Underwriter shall default in its obligation to
purchase the Firm Shares or Optional Shares which it has agreed to purchase
hereunder, you may in your discretion arrange for you or another party or other
parties to purchase such Shares on the terms contained herein. If within
thirty-six hours after such default by any Underwriter you do not arrange for
the purchase of such Firm Shares or Optional Shares, as the case may be, then
the Company shall be entitled to a further period of thirty-six hours within
which to procure another party or other parties satisfactory to you to purchase
such Shares on such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the purchase of
such Shares, or the Company notifies you that it has so arranged for the
purchase of such Shares, you or the Company shall have the right to postpone the
Time of Delivery for such Shares for a period of not more than seven days, in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to the
Registration Statement or the Prospectus which in your opinion may thereby be
made necessary. The term "Underwriter" as used in this Agreement shall include
any person substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the
purchase of the Firm Shares or Optional Shares, as the case may be, of a
defaulting Underwriter or Underwriters by you and the Company as provided in
subsection (a) above, the aggregate number of Firm Shares or Optional Shares, as
the case may be, which remains unpurchased does not exceed one-eleventh of the
aggregate number of Firm Shares or Optional Shares, as the case may be, then the
Company shall have the right to require each non-defaulting Underwriter to
purchase the number of Firm Shares or Optional Shares, as the case may be, which
such Underwriter agreed to purchase hereunder and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the number
of Firm Shares or Optional Shares, as the case may be, which such Underwriter
agreed to purchase hereunder) of the Firm Shares or Optional Shares, as the case
may be, of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Firm Shares or Optional Shares, as the case may be, of a
defaulting Underwriter or Underwriters by you and the Company as provided in
subsection (a) above, the aggregate number of Firm Shares or Optional Shares, as
the case may be, which remains unpurchased exceeds one-eleventh of the
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aggregate number of Firm Shares or Optional Shares, as the case may be, or if
the Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Firm Shares or Optional Shares,
as the case may be, of a defaulting Underwriter or Underwriters, then this
Agreement shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 5 hereof and the
indemnity and contribution agreements in Section 7 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
9. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Shares.
10. If this Agreement or any Over-allotment Option shall be
terminated pursuant to Section 8 hereof, the Company shall not then be under any
liability to any Underwriter except as provided in Section 5 and Section 7
hereof; but, if for any other reason, the Shares are not delivered by or on
behalf of the Company as provided herein, the Company will reimburse the
Underwriters through you for all out-of-pocket expenses approved in writing by
you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of such
Shares, but the Company shall then be under no further liability to any
Underwriter except as provided in Section 5 and Section 7 hereof.
11. In all dealings hereunder, you shall act on behalf of each
of the Underwriters, and the parties hereto shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of any Underwriter
made or given by you.
All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex or facsimile transmission to you at the address for notices set
forth in Schedule I; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 7(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by you upon
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
12. This Agreement shall be binding upon, and inure solely to
the benefit of, the Underwriters, the Company and, to the extent provided in
Section 7 and Section 9 hereof, the officers and directors of the Company and
each person who controls the Company or any Underwriter, and their respective
heirs, executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. No
purchaser
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of any of the Shares from any Underwriter shall be deemed a successor or assign
by reason merely of such purchase.
13. Time shall be of the essence of this Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
15. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such respective counterparts shall together constitute
one and the same instrument.
If the foregoing is in accordance with your understanding,
please sign and return to us [ONE FOR THE COMPANY AND ONE FOR EACH OF THE
REPRESENTATIVES PLUS ONE FOR EACH COUNSEL] counterparts hereof, and upon the
acceptance hereof by you, on behalf of each of the Underwriters, this letter and
such acceptance hereof shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is pursuant to the authority set
forth in a form of Agreement among Underwriters, the form of which shall be
submitted to the Company for examination upon request, but without warranty on
your part as to the authority of the signers thereof.
Very truly yours,
▇▇▇▇▇▇▇ Chemical Company
By:
-----------------------------------
Name:
Title:
Accepted as of the date hereof:
By:
----------------------------
Name:
Title:
For itself and as Representative of the other
Underwriters named in Schedule I hereto
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SCHEDULE I
MAXIMUM
NUMBER OF
NUMBER OF OPTIONAL SHARES
FIRM SHARES TO WHICH MAY BE
BE PURCHASED PURCHASED
-------------- ---------------
UNDERWRITER
-----------
Total
============== ===============
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SCHEDULE II
[Insert if Preferred Stock--
Title: .
[Number of Firm Shares:]
[Number of Optional Shares:]
Purchase Price to public (include accrued dividends, if any):
$ per share of Preferred Stock
Purchase Price to Underwriters (include accrued dividends, if any):
$ per share of Preferred Stock
Liquidation preference: $ per share of Preferred Stock
Annual Dividend: % of liquidation preference, payable [annually]
[semi-annually] [quarterly] on [ , ] [ and] , commencing
[Conversion rate: .]
[Sinking fund provisions: [None] [ ].]
[Redemption provisions: [None] [ ].]
[Other provisions*:]]
[Insert if Common Stock--
[Number of Firm Shares:]
[Number of Optional Shares:]
Purchase price per share to the public: $ per share [Formula].
Purchase price per share to the Underwriters: $ per share.] [Formula]
[Commission Payable to Underwriters: $ per share]
VOTING RIGHTS:
TIME OF DELIVERY:
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CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
[BLACKOUT PROVISIONS
During the period beginning from the date hereof and continuing to and
including the date [ ] [days] [years] after the date of the Prospectus, not to
offer, sell, contract to sell or otherwise dispose of any securities of the
Company (other than pursuant to employee stock option plans existing, or on the
conversion or exchange of convertible or exchangeable securities outstanding on
the date of this Agreement) which are substantially similar to the Shares [or
the] [shares of _________________ issuable upon conversion, exercise or exchange
of the Shares, without your prior written consent].
[OTHER TERMS*]:
[Specified Funds For Payment of Purchase price:]
* A description of particular tax, accounting or other unusual features
(including any event risk provisions) of the Shares should be set forth, or
referenced to an attached and accompanying description, if necessary to ensure
agreement as to the terms of the Shares to be purchased and sold. Such a
description might appropriately be in the form in which such features will be
described in the Prospectus Supplement for the offering.
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ANNEX I
Pursuant to Section 6(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, prospective financial statements and/or pro forma financial
information examined) by them and included in the Prospectus or the
Registration Statement comply as to form in all material respects with
the applicable accounting requirements of the Act and the related
published rules and regulations thereunder; and, if applicable, they
have made a review in accordance with standards established by the
American Institute of Certified Public Accountants of the unaudited
consolidated interim financial statements, selected financial data, pro
forma financial information, prospective financial statements and/or
condensed financial statements derived from audited financial
statements of the Company for the periods specified in such letter,
copies of which have been furnished to the Underwriters;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Company's quarterly
reports on Form 10-Q incorporated by reference into the Prospectus; and
on the basis of specified procedures including inquiries of officials
of the Company who have responsibility for financial and accounting
matters regarding whether the unaudited condensed consolidated
financial statements referred to in paragraph (v)(A) comply with the
applicable accounting requirements of the [ACT AND THE EXCHANGE] Act
and the related published rules and regulations, nothing came to their
attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all
material respects with the applicable accounting requirements of the
[ACT AND THE EXCHANGE] Act and the related published rules and
regulations;
(iv) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter nothing
came to their attention as a result of the foregoing procedures that
caused them to believe that this information does not conform
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26
in all material respects with the Company's accounting records and
audited financial statements; and
(v) On the basis of limited procedures, not constituting an
audit in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included in
the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus do not comply as to form
in all material respects with the applicable accounting
requirements of the Act and the related published rules and
regulations thereunder, or are not in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with the basis for the audited
consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the
Prospectus;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated
financial statements included in the Prospectus;
(C) any unaudited pro forma consolidated condensed
financial statements included in the Prospectus do not comply
as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not
been properly applied to the historical amounts in the
compilation of those statements; and
(D) as of a specified date not more than five days
prior to the date of such letter, there have been any changes
in the consolidated capital stock (other than issuances of
capital stock upon exercise of options and stock appreciation
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27
rights, upon earn-outs of performance shares and upon
conversions of convertible Shares, in each case which were
outstanding on the date of the latest financial statements
included in the Prospectus) or any increase in the
consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current
assets or net assets or other items specified by the
Underwriters or any increases in any items specified by the
Underwriters, in each case as compared with amounts shown in
the latest balance sheet included in the Prospectus; except in
each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are
described in such letter.
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