Exhibit 1
__________ Shares
FORT ▇▇▇▇▇ CORPORATION
Common Stock
(par value $.10 per share)
UNDERWRITING AGREEMENT
February __, 1998
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇ Limited
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
England
Ladies and Gentlemen:
Certain shareholders (the "Selling Shareholders") of Fort
▇▇▇▇▇ Corporation (formerly ▇▇▇▇▇ River Corporation of Virginia), a Virginia
corporation (the "Company"), named in Schedule I hereto severally propose to
sell to the several Underwriters (as defined below), an aggregate of __________
shares of common stock, par value $.10 per share (the "Firm Shares"), of the
Company, each Selling Shareholder selling the number of Firm Shares set forth
opposite such Selling Shareholder's name in Schedule I hereto.
It is understood that, subject to the conditions hereinafter
stated, __________ Firm Shares (the "U.S. Firm Shares") will be sold to the
several U.S. Underwriters named in Schedule II hereto (the "U.S. Underwriters")
in connection with the offering and sale of such U.S. Firm Shares in the United
States and Canada to United States and Canadian Persons (as such terms are
defined in the Agreement Between U.S. and International Underwriters of even
date herewith), and __________ Firm Shares (the "International Shares") will be
sold to the several International Underwriters named in Schedule III hereto (the
"International Underwriters") in connection with the offering and sale of such
International Shares outside the United States and Canada to persons other than
United States and Canadian Persons. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. shall act as
representatives (the "U.S. Representatives") of the several U.S. Underwriters,
and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited, ▇▇▇▇▇▇▇ ▇▇▇▇▇ International and
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. shall act as representatives (the "International
Representatives"; and together with the U.S. Representatives, the
"Representatives") of the several International Underwriters. The U.S.
Underwriters and the International Underwriters are hereinafter collectively
referred to as the "Underwriters".
The Selling Shareholders also propose to sell to the several
U.S. Underwriters not more than an additional __________ shares of Common Stock
(as defined below), divided among the Selling Shareholders as set forth opposite
such Selling Shareholder's name on Schedule I hereto (collectively, the
"Additional Shares"; and, together with the Firm Shares, the "Shares"), if and
to the extent that the U.S. Representatives shall have determined to exercise,
on behalf of the U.S. Underwriters, the right to purchase such shares of Common
Stock granted to the U.S. Underwriters in Article III hereof. Any purchase of
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Additional Shares by the U.S. Underwriters shall be sold by the Selling
Shareholders pro rata in accordance with Firm Shares sold. The shares of common
stock, par value $.10 per share, of the Company are hereinafter referred to as
the "Common Stock".
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File No.
333-45519) relating to the Shares. The registration statement contains two
prospectuses to be used in connection with the offering and sale of the Shares:
the U.S. prospectus, to be used in connection with the offering and sale of
Shares in the United States and Canada to United States and Canadian Persons,
and the international prospectus, to be used in connection with the offering and
sale of Shares outside the United States and Canada to persons other than United
States and Canadian Persons. The international prospectus is identical to the
U.S. prospectus except for the outside front cover page. The registration
statement as amended at the time it becomes effective, and including all
documents incorporated by reference therein, the exhibits thereto and the
information (if any) deemed to be part of the registration statement at the time
of effectiveness pursuant to Rule 430A under the Securities Act of 1933, as
amended (the "Securities Act"), is hereinafter referred to as the "Registration
Statement"; the U.S. prospectus and the international prospectus in the
respective forms first used to confirm sales of Shares, including all documents
incorporated by reference therein, are hereinafter collectively referred to as
the "Prospectus". If the Company has filed an abbreviated registration statement
to register additional shares pursuant to Rule 462(b) under the Securities Act
(the "Rule 462(b) Registration Statement"), then any reference herein to the
"Registration Statement" shall be deemed to include the Rule 462(b) Registration
Statement. The terms "supplement", "amendment" and "amend" as used herein shall
include all documents deemed, pursuant to Item 12(b) of Form S-3 under the
Securities Act, to be incorporated by reference in the Prospectus that are filed
subsequent to the date of the Prospectus by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"). The term "Effective Date" shall mean each date that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement referred to below became or shall become
effective. For purposes of this Agreement, all references to the Registration
Statement, the Prospectus or any amendment or supplement to the foregoing shall
be deemed to include the copy filed with the Commission pursuant to the
Commission's Electronic Data Gathering, Analysis and Retrieval System ("▇▇▇▇▇").
ARTICLE I
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
The Company represents and warrants to, and agrees with, each
Underwriter that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement under
the Securities Act is in effect, and no proceedings for that purpose
are pending before or, to the knowledge of the Company, have been
instituted or are contemplated by, the Commission.
(b) The Company meets the requirements for use of Form S-3
under the Securities Act. (i) Each document filed or to be filed
pursuant to the Exchange Act and incorporated by reference in the
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Prospectus complied when it was filed or will comply when so filed in
all material respects with the Exchange Act and the applicable rules
and regulations of the Commission thereunder, (ii) when the
Registration Statement became effective, the Registration Statement and
Prospectus, and, if applicable, any amendments or supplements thereto,
did, and on the Closing Date referred to below, will, in all material
respects conform to the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder, (iii)
the Registration Statement and, if applicable, any amendment or
supplement thereto at their respective effective dates and on the
Closing Date did not and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and
(iv) the Prospectus at the time the Registration Statement became
effective or the Prospectus together with any supplement thereto at
their respective issue dates did not, and at the Closing Date referred
to below, will not, contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in or
omitted from the Registration Statement or the Prospectus or any
supplement thereto in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through the U.S. Representatives specifically for use in connection
with the preparation of the Registration Statement or the Prospectus or
any supplement thereto. The Prospectus delivered to the Underwriters
for use in connection with the offering was identical to the
electronically transmitted copy thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(c) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse change
in the condition (financial or other), earnings or business affairs of
the Company and its subsidiaries considered as one enterprise, whether
or not arising from transactions in the ordinary course of business (a
"Material Adverse Effect"), and (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than
those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one
enterprise.
(d) This Agreement has been duly authorized, executed and
delivered by the Company.
(e) The outstanding shares of Common Stock (including the
Shares to be sold by the Selling Shareholders) have been duly
authorized and are validly issued, fully paid and non-assessable.
(f) The authorized capital stock of the Company conforms in
all material respects as to legal matters to the description thereof
contained in the Prospectus.
(g) The execution, delivery and performance by the Company of
this Agreement and the consummation by the Company of the transactions
contemplated herein and compliance by the Company with its obligations
hereunder have been duly authorized by all necessary corporate action
and do not and will not, whether with or without the giving of notice
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or passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company, Fort ▇▇▇▇▇ Operating Company
(formerly ▇▇▇▇▇ River Paper Company, Inc.) ("FJOC") or FORT ▇▇▇▇▇ N.V.
("FJNV"); and, together with FJOC, the "Significant Subsidiaries")
pursuant to any obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the
Company or any of the Significant Subsidiaries is a party or by which
it or any of them may be bound, or to which any of the property or
assets of the Company or any Significant Subsidiary is subject (except
for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not result in a Material Adverse Effect), nor
will any such action result in any violation of the provisions of the
charter or by-laws of the Company or any Significant Subsidiary, or any
applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic
or foreign, known to the Company having jurisdiction over the Company
or any Significant Subsidiary or any of their respective assets,
properties or operations which would result in a Material Adverse
Effect. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or
a portion of such indebtedness by the Company or any subsidiary.
(h) Except as disclosed in the Registration Statement or the
Prospectus (including the documents incorporated therein by reference),
or as would not, individually or in the aggregate, have a Material
Adverse Effect:
(i) the Company and the Significant Subsidiaries (A)
are in compliance with all, and are not subject to any
asserted liability or, to the Company's knowledge, any
liability, in each case with respect to any, applicable
Environmental Laws (as defined below), (B) hold or have
applied for all Environmental Permits (as defined below) and
(C) are in compliance with their respective Environmental
Permits;
(ii) neither the Company nor any Significant
Subsidiary has received any written notice, demand, letter,
claim or request for information alleging that the Company or
any of its subsidiaries may be in violation of, or liable
under, any Environmental Law;
(iii) neither the Company nor any Significant
Subsidiary (A) has entered into or agreed to any consent
decree or order or is subject to any judgment, decree or
judicial order relating to compliance with Environmental Laws,
Environmental Permits or the investigation, sampling,
monitoring, treatment, remediation, removal or cleanup of
Hazardous Materials (as defined below) and, to the knowledge
of the Company, no investigation, litigation or other
proceeding is pending or threatened in writing with respect
thereto, or (B) is an indemnitor in connection with any
threatened or asserted claim by any third-party indemnitee for
any liability under any Environmental Law or relating to any
Hazardous Materials; and
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(iv) none of the real property owned or leased by the
Company or any Significant Subsidiary is listed or, to the
knowledge of the Company, proposed for listing on the
"National Priorities List" under CERCLA, as updated through
the date hereof, or any similar state or foreign list of sites
requiring investigation or cleanup.
For purposes of this Agreement:
"CERCLA" means Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended as of the date
hereof.
"Environmental Laws" means any federal, state, local or
foreign statute, law, ordinance, regulation, rule, code, treaty, writ
or order and any enforceable judicial or administrative interpretation
thereof, including any judicial or administrative order, consent
decree, judgment, stipulation, injunction, permit, authorization,
policy, opinion, or agency requirement, in each case having the force
and effect of law, relating to the pollution, protection, investigation
or restoration of the environment, health and safety or natural
resources, including, without limitation, those relating to the use,
handling, presence, transportation, treatment, storage, disposal,
release, threatened release or discharge of Hazardous Materials or
noise, odor, wetlands, pollution, contamination or any injury or threat
of injury to persons or property.
"Environmental Permits" means any permit, approval,
identification number, license and other authorization required under
any applicable Environmental Law.
"Hazardous Materials" means (a) any petroleum, petroleum
by-products or breakdown products, radioactive materials,
asbestos-containing materials or polychlorinated biphenyls or (b) any
chemical, material or other substance defined or regulated as toxic or
hazardous or as a pollutant or contaminant or waste under any
applicable Environmental Law.
(i) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency by or on behalf of the Company is
necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering or sale of the
Shares hereunder or the consummation by the Company of the transactions
contemplated by this Agreement, except such as have been already
obtained, and except for such that would not reasonably be expected to
have a Material Adverse Effect or as may be required under the
Securities Act or the applicable rules and regulations of the
Commission thereunder or state securities laws.
(j) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the
price of the Common Stock (provided that the Company does not make any
representation as to any actions that may be taken by any Underwriter);
and the Company has not distributed and will not distribute any
prospectus or other offering material in connection with the offering
and sale of the Shares other than the Registration Statement, any
preliminary prospectus filed with the Commission or the Prospectus or
other material permitted by the Securities Act.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE SELLING SHAREHOLDERS
Each of the Selling Shareholders, severally and not jointly
with the other Selling Shareholders as to itself only, represents and warrants
to, and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Shareholder.
(b) Assuming the accuracy of the Company's representations in
paragraphs (a) and (b) of Article I, the execution and delivery by such
Selling Shareholder of, and the performance by such Selling Shareholder
of its obligations under, this Agreement, the Custody Agreement signed
by such Selling Shareholder and Norwest Bank, Minnesota, N.A., as
custodian (the "Custodian"), relating to the deposit of the Shares to
be sold by such Selling Shareholder (the "Custody Agreement") and the
Power of Attorney appointing certain individuals as such Selling
Shareholder's attorneys-in-fact to the extent set forth therein,
relating to the transactions contemplated hereby and by the
Registration Statement (the "Power of Attorney") will not contravene
any provision of applicable law (other than any state securities law or
Blue Sky law or any foreign law), or the certificate of incorporation
or by-laws of such Selling Shareholder (if such Selling Shareholder is
a corporation), or any agreement or other instrument binding upon such
Selling Shareholder or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over such
Selling Shareholder, and no consent, approval, authorization or order
of, or qualification with, any governmental body or agency is required
for the performance by such Selling Shareholder of its obligations
under this Agreement or the Custody Agreement or Power of Attorney of
such Selling Shareholder, except such as may be required by the
securities or Blue Sky laws of the various states or foreign
jurisdictions in connection with the offer and sale of the Shares.
(c) On the date hereof, such Selling Shareholder has valid
title to the Shares to be sold by such Selling Shareholder; on the
Closing Date, such Selling Shareholder will have valid title to the
Shares to be sold by such Selling Shareholder; and, on the date hereof,
such Selling Shareholder has the legal right and power, and, assuming
the accuracy of the Company's representations in paragraphs (a) and (b)
of Article I, all authorization and approval required by law, to enter
into this Agreement and to sell, transfer and deliver the Shares to be
sold by such Selling Shareholder.
(d) If the Selling Shareholder has executed and delivered a
Custody Agreement, such Custody Agreement has been duly authorized,
executed and delivered by such Selling Shareholder and is a valid and
binding agreement of such Selling Shareholder.
(e) Upon delivery of, and payment for, the Shares to be sold
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by such Selling Shareholder pursuant to this Agreement, the
Underwriters will acquire title to such Shares free and clear of any
security interests, claims, liens, equities and other encumbrances.
ARTICLE III
AGREEMENTS TO SELL
AND PURCHASE SHARES
Subject to the terms and conditions and on the basis of the
representations and warranties herein set forth, each Selling Shareholder,
severally and not jointly, agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from such Selling
Shareholder, at $________ a share (the "Purchase Price") the number of Firm
Shares (subject to such adjustments to eliminate fractional shares as the U.S.
Representatives may determine) that bears the same proportion to the number of
Firm Shares to be sold by such Selling Shareholders as the aggregate number of
Firm Shares set forth in Schedules II and III opposite the name of such
Underwriter bears to the total number of Firm Shares.
On the basis of the representations and warranties contained
in this Agreement, and subject to its terms and conditions, each of the Selling
Shareholders agrees, severally and not jointly, to sell to the U.S. Underwriters
the Additional Shares, and the U.S. Underwriters shall have a one-time right to
purchase, severally and not jointly, up to __________ Additional Shares at the
Purchase Price. Additional Shares may be purchased as provided in Article V
hereof solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. If any Additional Shares are to be
purchased, each U.S. Underwriter agrees, severally and not jointly, to purchase
the number of Additional Shares (subject to such adjustments to eliminate
fractional shares as the U.S. Representatives may determine) that bears the same
proportion to the total number of Additional Shares to be purchased as the
number of Shares set forth in Schedule II hereto opposite the name of such U.S.
Underwriter bears to the total number of U.S. Firm Shares.
The Company hereby agrees, without the prior written consent
of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated on behalf of the Underwriters, (i) not to
effect any public sale or distribution of any Common Stock, or any securities
convertible into or exchangeable or exercisable for Common Stock (together with
the Common Stock, the "Securities") (other than any such sale or distribution of
such Securities pursuant to registration of such Securities on Form S-4 or S-8
or any successor forms or any such sale or distribution of such Securities in
connection with any merger or consolidation involving the Company or a
subsidiary of the Company or the acquisition by the Company or a subsidiary of
the Company of the capital equity or substantially all of the assets of any
other person or entity), during the 14 days prior to, and during the 90 days
beginning on the Effective Date of the Registration Statement, except as part of
such Registration Statement and (ii) that any agreement entered into after the
date of this Agreement pursuant to which the Company issues or agrees to issue
any privately placed Securities shall contain a provision under which holders of
such Securities agree not to effect any public sale or distribution of any such
Securities during the periods described in (i) above, in each case including a
sale pursuant to Rule 144 (or any similar provision then in force) under the
Securities Act (except as part of any such registration, if permitted);
provided, however, that the provisions of this paragraph shall not (A) prevent
the conversion or exchange of any
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Securities pursuant to their terms into or for other Securities and (B) apply to
any issuance of Securities under the Rights Agreement (as defined in the
Registration Statement).
ARTICLE IV
TERMS OF PUBLIC OFFERING
The Selling Shareholders are advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Selling Shareholders are
further advised by you that the Shares are to be offered to the public initially
at $_______ a Share (the "public offering price") and to certain dealers
selected by you at a price that represents a concession not in excess of
$_______ a Share under the public offering price, and that any Underwriter may
allow, and such dealers may reallow, a concession, not in excess of $_________ a
Share, to any Underwriter or to certain other dealers.
Each U.S. Underwriter hereby makes to and with the Selling
Shareholders the representations and agreements of such U.S. Underwriter
contained in the fifth paragraph of Article III of the Agreement Between U.S.
and International Underwriters of even date herewith. Each International
Underwriter hereby makes to and with the Selling Shareholders the
representations and agreements for such International Underwriter contained in
the seventh, eighth and ninth paragraphs of Article III of such Agreement.
ARTICLE V
DELIVERY OF AND
PAYMENT FOR SHARES
Payment for the Firm Shares to be sold by each Selling
Shareholder shall be made by wire transfers payable to the order of the
Custodian in federal funds or other funds immediately available in New York City
against delivery of such Firms Shares for the respective accounts of the several
Underwriters at 10:00 A.M., New York City time, on ____________, 1998, or at
such other time on the same or such other date, not later than ____________,
1998, as shall be agreed to by you and the Selling Shareholders. The time and
date of each such payment are hereinafter referred to as the "Closing Date".
Payment for any Additional Shares shall be made by wire
transfers payable to the order of the Custodian in federal funds or other funds
immediately available in New York City against delivery of such Additional
Shares for the respective accounts of the several Underwriters at 10:00 A.M.,
New York City time, on such date (which may be the same as the Closing Date but
shall in no event be earlier than the Closing Date nor later than ten business
days after the giving of the notice hereinafter referred to) as shall be
designated in a written notice from the U.S. Representatives to the Selling
Shareholders and the Company of your determination, on behalf of the
Underwriters, to purchase a number, specified in said notice, of Additional
Shares, or on such other date, in any event not later than March __, 1998, as
shall be designated in writing by the U.S. Representatives. The time and date of
such payment are hereinafter referred to as the "Option Closing Date". The
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notice of the determination to exercise the option to purchase Additional Shares
and of the Option Closing Date may be given at any time within 30 days after the
date of this Agreement.
Certificates for the Firm Shares and Additional Shares shall
be in definitive form and registered in such names and in such denominations as
you shall request in writing to the Company not later than 9:30 a.m., New York
City Time on the business day prior to the Closing Date or the Option Closing
Date, as the case may be. The certificates evidencing the Shares and Additional
Shares shall be delivered to you on the Closing Date or the Option Closing Date,
as the case may be, for the respective accounts of the several Underwriters,
with any transfer taxes payable in connection with the transfer of the Shares to
the Underwriters duly paid, against payment of the Purchase Price therefor.
ARTICLE VI
CONDITIONS TO OBLIGATIONS
OF SELLING SHAREHOLDERS
AND UNDERWRITERS
(a) The obligations of the Selling Shareholders and the
several obligations of the Underwriters hereunder are subject to the condition
that the Registration Statement shall have become effective not later than the
date hereof.
(b) The several obligations of the Underwriters hereunder are
subject to the following conditions:
(i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened by the
Commission; if filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b) under the Securities Act, the
Prospectus, and any such supplement, shall have been filed in the
manner and within the time period required by Rule 424(b).
(ii) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman, Chief Executive
Officer, an Executive Vice President, a Senior Vice President or a Vice
President and by the principal financial or accounting officer or
treasurer, dated the Closing Date, to the effect that, to the best of
their knowledge, based upon reasonable investigation:
(A) the representations and warranties of the Company
in this Agreement are true and correct, as if made at and as
of the Closing Date, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(B) no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceeding for
that purpose has been instituted or is threatened, by the
Commission; and
(C) since the date of the most recent financial
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statements included in the Prospectus (exclusive of any
supplement thereto), there has been no material adverse change
or development involving a prospective material adverse change
in the condition (financial or other), earnings or business of
the Company and its subsidiaries considered as one enterprise,
whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in
the Prospectus (exclusive of any supplement thereto).
(iii) The Underwriters shall have received on the Closing Date
a certificate dated the Closing Date from each Selling Shareholder to
the effect that, to the best knowledge of such Selling Shareholder,
after due inquiry, the representations and warranties of such Selling
Shareholder contained herein are true and correct in all respects as of
the Closing Date.
(iv) You shall have received on the Closing Date an opinion of
McGuire, Woods, Battle & ▇▇▇▇▇▇ LLP, Counsel for the Company, in form
and substance satisfactory to you and your counsel, dated the Closing
Date, to the effect that:
(A) The Company has been duly organized and is
validly existing and in good standing under the laws of the
Commonwealth of Virginia; FJOC has been duly organized and is
validly existing and in good standing under the laws of the
jurisdiction of its incorporation; each of the Company and
FJOC has corporate power and authority to conduct its business
as described in the Prospectus; each of the Company and FJOC
is, if applicable, duly qualified to do business and is, if
applicable, in good standing in each jurisdiction in which it
owns or leases a material amount of real property;
(B) The Shares have been duly authorized and are
validly issued, fully paid and non-assessable;
(C) All of the outstanding shares of capital stock of
the Significant Subsidiaries have been duly authorized and
validly issued, are fully paid and non-assessable and are
owned beneficially, directly or indirectly (except as
otherwise stated in the Prospectus), by the Company subject to
no perfected mortgage, pledge, lien, encumbrance, charge or
adverse claim and, to the knowledge of such counsel, any other
mortgage, pledge, lien, encumbrance, charge or adverse claim;
(D) This Agreement has been duly authorized, executed
and delivered by the Company;
(E) The descriptions in the Registration Statement
and the Prospectus of statutes, legal and governmental
proceedings, contracts and other documents are accurate in all
material respects and fairly present the information required
to be shown; and such counsel does not know of any statutes or
legal or governmental proceedings required to be described in
the Prospectus that are not described as required, or of any
contracts or documents of a character required to be described
in the Registration Statement or Prospectus (or required to be
filed under the Exchange Act if upon such filing they would be
incorporated, in whole or in part, by reference therein) or to
be filed as
11
exhibits to the Registration Statement that are not described
and filed as required; and
(F) The Company's execution, delivery and performance
of this Agreement, or the consummation of the transactions
herein contemplated and the Company's compliance with its
obligations under this Agreement, will not result in a breach
or violation of any of the terms and provisions of, or
constitute a default under, any statute, any agreement or
instrument known to such counsel to which the Company or any
Significant Subsidiary is a party or by which it is bound or
to which any of the property of the Company or any Significant
Subsidiary is subject, the Company's or any Significant
Subsidiary's Articles of Incorporation, as amended to date, or
by-laws, 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 Significant Subsidiary or
any of their respective properties; and no consent, approval,
authorization or order of, or filing with, any court or
governmental agency or body is required for the consummation
of the transactions contemplated by this Agreement, except
such as have been obtained under the Securities Act and such
as may be required under state securities laws in connection
with the purchase and distribution of the Shares by the
Underwriters; provided that no opinion is called for with
respect to any such consent, approval, authorization or order
required to be obtained under the Securities Act and the
applicable rules and regulations of the Commission thereunder
that have been obtained or as may be required under state
securities laws or Blue Sky Laws of the various states.
Such counsel shall also state that: they have no reason to believe that
at the Effective Date, the Registration Statement contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus at the time the
Prospectus is issued or at the Closing Date includes any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and the
documents from which information is incorporated by reference in the
Prospectus, 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 Securities Act and of the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder; it being understood that such counsel need
express no belief as to the financial statements or other financial
information included in any of the documents mentioned in this
sentence.
References to the Prospectus in this paragraph (iv) include
any supplements thereto at the Closing Date.
(v) You shall have received on the Closing Date an opinion of
DeBrauw, Blackstone & Westbroek, Counsel for the FJNV, in form and
substance satisfactory to you and your counsel, dated the Closing Date,
to the effect that:
(A) FJNV has been duly organized and is validly
existing and, if applicable, in good standing under the laws
of the Netherlands; has corporate power and authority to
12
conduct its business as described in the Prospectus; FJNV is,
if applicable, duly qualified to do business and is, if
applicable, in good standing in each jurisdiction in which it
owns or leases a material amount of real property;
(vi) The Company shall have furnished to the Representatives
the opinion of Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, counsel for the Company,
dated the Closing Date, to the effect that:
(A) The authorized capital stock of the Company is as
set forth in the Prospectus; and the Shares conform to the
description of the Common Stock contained in the Prospectus;
(B) Such counsel has been advised by the staff of the
Commission that the Registration Statement has become
effective under the Securities Act on the date and at the time
specified in such opinion; the Prospectus was filed pursuant
to the subparagraph of Rule 424(b) under the Securities Act
specified in such opinion on the date specified therein in the
manner and within the time period required by Rule 424(b); and
no stop order suspending the effectiveness of the Registration
Statement under the Securities Act has been issued and, to
such counsel's knowledge, no proceeding has been instituted or
threatened;
(C) The Registration Statement, including any Rule
462(b) Registration Statement, and the Prospectus, and any
further amendments or supplements thereto (other than the
financial statements and other financial data therein, as to
which such counsel need express no opinion), comply as to form
in all material respects with the requirements of the
Securities Act and the rules and regulations of the Commission
thereunder; and
(D) The descriptions in the Registration Statement
and the Prospectus (excluding any documents incorporated
therein by reference) of contracts and other documents are
accurate in all material respects.
In rendering such opinion, such counsel may state that their opinion is
limited to matters governed by the federal laws of the United States of
America and the laws of the State of New York.
Such counsel shall also have furnished to the Representative,
a written statement, addressed to the U.S. Underwriters and dated the Closing
Date, to the effect that (i) no facts have come to their attention to lead them
to believe that at the Effective Date the Registration Statement contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus at the time the Prospectus is issued or at the
Closing Date includes any untrue statement of a material fact or omits to state
a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and (ii) the documents
from which information is incorporated by reference in the Prospectus, 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 Securities Act
and of the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder; it being understood that such counsel need express no
13
belief as to the financial statements or other financial information included in
any of the documents mentioned in this sentence.
References to the Prospectus in this paragraph (v) include any
supplements thereto at the Closing Date.
(vii) You shall have received on the Closing Date an opinion
of counsel for each of the Selling Shareholders, in form and substance
reasonably satisfactory to counsel to the Underwriters, dated the
Closing Date, to the effect that:
(A) this Agreement has been duly authorized, executed
and delivered by or on behalf of the Selling Shareholder;
(B) the execution and delivery by the Selling
Shareholder of, and the performance by such Selling
Shareholder of its obligations under, this Agreement and, if
applicable, the Custody Agreement and Power of Attorney of
such Selling Shareholder will not contravene any provision of
applicable law, or the certificate of incorporation or by-laws
of such Selling Shareholder (if such Selling Shareholder is a
corporation), or, to the best of such counsel's knowledge, any
agreement or other instrument binding upon such Selling
Shareholder or, to the best of such counsel's knowledge, any
judgment, order or decree of any governmental body, agency or
court having jurisdiction over such Selling Shareholder, and
no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is
required for the performance by such Selling Shareholder of
its obligations under this Agreement or, if applicable, the
Custody Agreement or Power of Attorney of such Selling
Shareholder, except such as may be required by the securities
or Blue Sky laws of the various states in connection with the
offer and sale of the Shares;
(C) the Selling Shareholder has valid title to the
Shares to be sold by such Selling Shareholder and has the
legal right and power, and all authorization and approval
required by law, to enter into this Agreement, and, if
applicable, the Custody Agreement and Power of Attorney of
such Selling Shareholder and to sell, transfer and deliver the
Shares to be sold by such Selling Shareholder;
(D) if applicable, the Custody Agreement of such
Selling Shareholder has been duly authorized, executed and
delivered by such Selling Shareholder and is a valid and
binding agreement of such Selling Shareholder; and
(E) delivery of the Shares to be sold by the Selling
Shareholder pursuant to this Agreement will pass title to such
Shares free and clear of any security interests, claims,
liens, equities and other encumbrances.
(viii) The Representatives shall have received from Shearman &
Sterling, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the Shares,
the Registration Statement, the Prospectus (together with any
supplement thereto) and other related matters as the Representatives
may reasonably require, and such counsel shall have received such
14
papers and information as they request for the purpose of enabling them
to pass upon such matters.
The opinions of McGuire, Woods, Battle & ▇▇▇▇▇▇ LLP and
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇ and each of the counsel described in
paragraph (vi) above shall be rendered to you at the request of the
Company or one or more of the Selling Shareholders, as the case may be,
and shall so state therein.
(ix) On the date hereof and on the Closing Date, Coopers &
▇▇▇▇▇▇▇ L.L.P. shall have furnished to the Representatives a letter or
letters, dated as of the date hereof and the Closing Date, in form and
substance satisfactory to the U.S. Representatives, which confirms that
they are independent certified public accountants with respect to the
Company within the meaning of the Securities Act and the applicable
rules and regulations of the Commission thereunder and containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference in the Registration Statement and Prospectus.
(x) Prior to the Closing Date, the Company shall have
furnished to the U.S. Representatives such further information,
certificates and documents as the U.S. Representatives may reasonably
request.
If any of the conditions specified in this Article VI shall
not have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above shall not
be in all material respects reasonably satisfactory in form and substance to the
U.S. Representatives and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the U.S. Representatives. Notice of such
cancellation shall be given to the Company and the Selling Shareholder in
writing or by telephone or facsimile transmission confirmed in writing.
ARTICLE VII
AGREEMENTS OF THE COMPANY
In further consideration of the agreements of the Underwriters
herein contained, the Company covenants with the several Underwriters as
follows:
(a) To use its best efforts to cause the Registration
Statement, if not effective at the date hereof, and any amendment
thereto, to become effective. Prior to the termination of the offering
of the Shares, the Company will not file any amendment of the
Registration Statement or supplement to the Prospectus (other than (A)
any document required to be filed under the Exchange Act that upon
filing is deemed to be incorporated by reference into the Prospectus
and (B) such documents required to be filed during the period from the
date hereof through the Closing Date) unless the Company has furnished
you a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object.
15
Subject to the foregoing sentence, the Company will cause the
Prospectus and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence reasonably satisfactory to
the U.S. Representatives of such timely filing. The Company will advise
the U.S. Representatives as promptly as practicable after it shall
18
receive notice or obtain knowledge thereof (i) when the Registration
Statement, if not effective at the date hereof, and any amendment
thereto, shall have become effective, (ii) when the Prospectus, and any
supplement thereto, shall have been filed with the Commission pursuant
to Rule 424(b), (iii) when, prior to termination of the offering of the
Shares, any amendment to the Registration Statement, including any Rule
462(b) Registration Statement, shall have been filed or become
effective, (iv) of any request by the Commission for any amendment of
the Registration Statement or supplement to the Prospectus or for any
additional information, (v) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or the institution or threatening of any proceeding for that purpose
and (vi) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Shares
is required under the Securities Act, to be delivered in connection
with sales by an underwriter or dealer any event occurs as a result of
which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement or supplement the
Prospectus to comply with the Securities Act or the Exchange Act or the
applicable rules and regulations of the Commission thereunder, the
Company as promptly as practicable will notify the U.S. Representatives
and prepare and file with the Commission, subject to the second
sentence of paragraph (a) of this Article VII, an amendment or
supplement which will correct such statement or omission or effect such
compliance.
(c) Commencing within three months after the Effective Date of
the Registration Statement, as soon as reasonably practicable, to make
generally available to its security holders and to the U.S.
Representatives an earning statement or statements of the Company and
its subsidiaries which will satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 under the Securities Act.
(d) To furnish to the U.S. Representatives and counsel for the
Underwriters, without charge, seven signed copies of the Registration
Statement (including exhibits thereto) and, so long as delivery of a
prospectus in connection with sales by an underwriter or dealer may be
required by the Securities Act, as many copies of the Prospectus and
any supplement thereto as the U.S. Representatives may reasonably
request. Copies of the Registration Statement and each amendment
thereto, and the Prospectus furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with
the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(e) To use its best efforts to qualify the Shares for sale
under the laws of such jurisdictions in the United States the U.S.
16
Representatives may reasonably designate, to maintain such
qualifications in effect so long as required for the distribution of
the Shares and to pay all expenses (including fees and disbursements of
counsel) in connection with such qualification and in connection with
any review of the offering of the Shares by the National Association of
Securities Dealers, Inc. (the "NASD"), except that the Company shall
not be required in connection therewith to qualify as a foreign
corporation, to execute a general consent to service of process in any
state or otherwise to subject itself to taxation in connection with any
such qualification; and will arrange for the determination of the
legality of the Shares for purchase by institutional investors.
(f) The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and
of each amendment thereto (including any post-effective amendment
thereto) and the preparation, the printing and delivery to the
Underwriters of copies of any preliminary prospectus and the Prospectus
and any amendments or supplements thereto, (ii) the preparation,
printing and delivery to the Underwriters of this Agreement, any
Agreement Among Underwriters to which the Company is a party, the
Custody Agreement and such other documents as may be required in
connection with the offering, purchase, sale or delivery of the Shares,
(iii) the preparation, issuance and delivery of certificates for the
Shares to the Underwriters, (iv) the fees and disbursements of the
Company's counsel, accountants and other advisors, (v) the
qualification of the Shares under securities laws in accordance with
the provisions of paragraph (e) of this Article VII, including filing
fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto, (vi) the
filing of trade reports in the provinces of Canada, if any, including
filing fees and fees and disbursements of Canadian counsel for the
Underwriters in connection therewith, (vii) the filing fees incident
to, and the reasonable fees and disbursements of counsel for the
Underwriters in connection with, the review, if any, by the NASD of the
terms of the sale of the Shares, (viii) the costs and expenses of the
Company relating to investor presentations or any "road show"
undertaken in connection with the marketing of the offering, including
without limitation, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged
in connection with the road show presentations with the prior approval
of the Company, travel and lodging expenses of the representatives and
officers of the Company and any such consultants, and the cost of any
aircraft chartered by the Company in connection with the road show,
(ix) the costs and charges of any transfer agent, registrar or
depositary, (x) costs and charges of the Custodian and (xi) fees and
disbursements of foreign counsel to the Company.
(g) If the sale of the Shares provided for herein is not
consummated because any condition to the obligations of the
Underwriters set forth in Article VI hereof is not satisfied, because
of any termination pursuant to Article XI hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters or the Selling
Shareholders, the Company will reimburse the Underwriters severally
17
upon demand for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Shares.
(h) On the Closing Date, the Company shall deliver, or caused
to be delivered, to the Selling Shareholders the opinions and the
comfort letter, dated the Closing Date, referred to in Article VI. Such
opinions and the comfort letter shall be addressed to the Selling
Shareholders.
ARTICLE VIII
CERTAIN EXPENSES
Each Selling Shareholder, severally and not jointly, agrees to
pay or cause to be paid any underwriting discounts or commissions that may be
payable in connection with the sale of the Shares by such Selling Shareholder.
18
ARTICLE IX
INDEMNIFICATION
19
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each Underwriter
and each person who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act as follows:
(i) against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Securities
Act, the Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
registration statement for the registration of the Shares as originally filed or
in any amendment thereof (including any post-effective amendment), 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, or arise out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or
Prospectus (or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; (ii) against any and all loss, liability, claim, damage and expense
whatsoever, as reasonably incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, provided that any such
settlement is effected with the written consent of the Company in the Company's
sole discretion; and (iii) agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through the U.S. Representatives
expressly for use in connection with the preparation thereof; and provided
further that the Company shall not be liable in any such case to any such
Underwriter to the extent that any such loss, claim, damage or liability results
from the fact that such Underwriter sold Shares to a person to whom there was
not given or sent, at or prior to the written confirmation of such sale, a copy
of the Prospectus, as then amended or supplemented (excluding the documents
incorporated by reference therein) if the Company has previously furnished
copies thereof to such Underwriter, and if the Company has sustained the burden
of proof that, with respect to statements or omissions, other than those made in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through the U.S. Representatives
specifically for use in connection with the preparation of the documents
referred to in the foregoing indemnity, such Prospectus, or any amendment or
supplement thereto (including the documents incorporated by reference therein)
corrected the untrue statement or alleged untrue statement or omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading or alleged omission giving rise to such loss, claim,
damage or liability. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) The Company agrees to indemnify and hold harmless each
20
Selling Shareholder, the directors, officers, employees and agents of each
Selling Shareholder and each person who controls any Selling Shareholder within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act as follows: (i) against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or other federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the Securities
as originally filed or in any amendment thereof (including any post-effective
amendment), 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, or arise out of any untrue statement
or alleged untrue statement of a material fact included in any preliminary
prospectus or Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; (ii) against any and all loss, liability, claim,
damage and expense whatsoever, as reasonably incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading,
provided that any such settlement is effected with the written consent of the
Company in the Company's sole discretion; and (iii) agrees to reimburse each
such indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company will not
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission of a material fact required to
be stated therein or necessary to make the statements therein not misleading in
reliance upon and in conformity with information furnished to the Company in
writing by or on behalf of such Selling Shareholder expressly for use in the
Registration Statement, any preliminary prospectus or the Prospectus; and
provided further that the Company shall not be liable in any such case to any
such Selling Shareholder to the extent that any such loss, claim, damage or
liability results from the fact that an Underwriter sold Shares to a person to
whom there was not given or sent, at or prior to the written confirmation of
such sale, a copy of the Prospectus, as then amended or supplemented (excluding
the documents incorporated by reference therein) if the Company has previously
furnished copies thereof to such Underwriter, and if the Company has sustained
the burden of proof that, with respect to statements or omissions, other than
those made in reliance upon and in conformity with written information furnished
to the Company by or on behalf of such Selling Shareholder expressly for use in
the documents referred to in the foregoing indemnity, such Prospectus, or any
amendment or supplement thereto (including the documents incorporated by
reference therein) corrected the untrue statement or alleged untrue statement or
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading or alleged omission giving rise to such
loss, claim, damage or liability. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(c) Each Selling Shareholder agrees, severally and not
jointly, to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls
21
any Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act as follows: (i) against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Securities Act, the Exchange Act or other federal
or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the registration statement for the registration
of the Shares as originally filed or in any amendment thereof (including any
post-effective amendment), 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, or arise out of any
untrue statement or alleged untrue statement of a material fact included in any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; (ii) against any and
all loss, liability, claim, damage and expense whatsoever, as reasonably
incurred, to the extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or omission
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, provided that any such settlement is effected
with the written consent of each Selling Shareholder in such Selling
Shareholder's sole discretion; and (iii) agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided however that each Selling
Shareholder will only be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading in reliance upon and in conformity with information
furnished to the Company in writing by or on behalf of such Selling Shareholder
expressly for use in the Registration Statement, any preliminary prospectus or
the Prospectus; provided further that each Selling Shareholder shall not be
liable in any such case to any such Underwriter to the extent that any such
loss, claim, damage or liability results from the fact that such Underwriter
sold Shares to a person to whom there was not given or sent, at or prior to the
written confirmation of such sale, a copy of the Prospectus, as then amended or
supplemented (excluding the documents incorporated by reference therein) if the
Company has previously furnished copies thereof to such Underwriter, and if the
Company has sustained the burden of proof that, with respect to statements or
omissions, other than those made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Selling Shareholder
specifically for use in connection with the documents referred to in the
foregoing indemnity, such Prospectus, or any amendment or supplement thereto
(including the documents incorporated by reference therein) corrected the untrue
statement or alleged untrue statement or omission of a material fact required to
be stated therein or necessary to make the statements therein not misleading or
alleged omission giving rise to such loss, claim, damage or liability.
Notwithstanding any other provision of this Article IX, the liability of each
Selling Shareholder to each Underwriter shall not exceed the net amount received
by each such Selling Shareholder (after deducting any underwriting discount)
from the sale of the Shares pursuant to this Agreement.
(d) Each Selling Shareholder severally agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers who signs
22
the Registration Statement, and each person who controls the Company within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, to the same extent as the foregoing indemnity from the Company to each
Selling Shareholder, but only with respect to untrue statements or omissions, or
alleged untrue statements of a material fact required to be stated therein or
necessary to make the statements therein not misleading or omissions made in the
documents referred to in the foregoing indemnity in reliance on and in
conformity with written information relating to such Selling Shareholder
furnished to the Company in writing by or on behalf of such Selling Shareholder
expressly for use in the documents referred to in the foregoing indemnity, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action. This indemnity
agreement will be in addition to any liability which any Selling Shareholder may
otherwise have. Notwithstanding any other provision of this Article IX, the
liability of each Selling Shareholder to the Company shall not exceed the net
amount received by each such Selling Shareholder (after deducting any
underwriting discount) from the sale of the Shares pursuant to this Agreement.
(e) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with respect to untrue statements or omissions, or alleged
untrue statements of a material fact required to be stated therein or necessary
to make the statements therein not misleading or omissions made in the documents
referred to in the foregoing indemnity in reliance on and in conformity with
written information relating to such Underwriter furnished to the Company by or
on behalf of such Underwriter through the U.S. Representatives specifically for
use in connection with the preparation of the documents referred to in the
foregoing indemnity, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
(f) Each Underwriter severally agrees to indemnify and hold
harmless each of the Selling Shareholders, each of its directors and officers,
and each person who controls such Selling Shareholder within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, to
the same extent as the foregoing indemnity from each of the Selling Shareholders
to each Underwriter, but only with respect to untrue statements or omissions, or
alleged untrue statements of a material fact required to be stated therein or
necessary to make the statements therein not misleading or omissions made in the
documents referred to in the foregoing indemnity in reliance on and in
conformity with written information relating to such Underwriter furnished to
the Company by or on behalf of such Underwriter through the U.S. Representatives
specifically for use in connection with the preparation of the documents
referred to in the foregoing indemnity, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action. This indemnity agreement will be in addition
to any liability which any Underwriter may otherwise have.
23
(g) Promptly after receipt by an indemnified party under this
Article IX of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Article IX, notify the indemnifying party in writing of the
commencement thereof, but the failure so to notify the indemnifying party (i)
will not relieve it from liability under the applicable provisions of paragraphs
(a) through (f) above, unless and to the extent it did not otherwise learn of
such action and such failure results in the forfeiture by the indemnifying party
of substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification and reimbursement obligations provided in the applicable
paragraphs (a) through (f) above. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party and any others the indemnifying party
may designate in such proceeding in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including not more than two local
counsels), and the indemnifying party shall bear the reasonable fees, costs and
expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action (including any impleaded parties) include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the institution
of such action or (iv) the indemnifying party shall authorize in writing the
indemnified party to employ separate counsel at the expense of the indemnifying
party. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent, the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement. An indemnifying
party will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding and does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any indemnified party.
(h) In the event that the indemnity provided in paragraph (a)
through (f) of this Article IX is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company, the Selling
Shareholders and the Underwriters agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively,
"Losses") to which the Company, one or more of the Selling Shareholders or one
24
or more of the Underwriters may be subject in such proportion as is appropriate
to reflect the relative benefits received by the Company, the Selling
Shareholders and by the Underwriters from the offering of the Shares; provided,
however, that (i) 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 any such untrue or alleged untrue statement or omission or alleged
omission and (ii) no Selling Shareholder shall be required to contribute any
amount in excess of the amount by which the net amount received by such Selling
Shareholder (after deducting any underwriting discount) exceeds the amount of
damages that any such Selling Shareholder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company, the Selling Shareholders and the
Underwriters shall contribute in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the Company, the
Selling Shareholders and the Underwriters in connection with the statements or
omissions which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company and the Selling Shareholders,
respectively, shall be deemed to be equal to the total net proceeds, in the case
of the Company, and the respective net proceeds to each Selling Shareholder, in
the case of the Selling Shareholders, from the offering (before deducting
expenses), and benefits received by the Underwriters shall be deemed to be equal
to the total underwriting discounts and commissions, in each case as set forth
on the cover page and "Selling Stockholders" section of the Prospectus,
respectively. 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 either the Company, the Selling Shareholders, or the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
Company, the Selling Shareholders and the Underwriters agree that it would not
be just and equitable if contribution were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or any
other method of allocation which does not take account of the equitable
considerations referred to above. Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this paragraph (h), notify such
party or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder (other than under this paragraph (h)) or otherwise. Notwithstanding
the provisions of this paragraph (h), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Article IX, each person who
controls an Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to contribution
as such Underwriter, and each person who controls the Company within the meaning
of either Section 15 the Securities Act or Section 20 of the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (h).
The respective obligations of the U.S. Underwriters and the
International Underwriters to contribute pursuant to this Article IX are several
25
in proportion to the principal amount of Shares set forth opposite their
respective names in Schedules II and III hereto and not joint.
ARTICLE X
DEFAULT BY AN
UNDERWRITER
If any one or more Underwriters shall fail to purchase and pay
for any of the Shares agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement, the remaining
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Shares set forth opposite their names
in Schedules II and III hereto bears to the aggregate number of Shares set forth
opposite the names of all the remaining Underwriters) the Shares which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate number of Shares which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate number of Shares set forth in Schedules II and III
hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Shares, and if such
nondefaulting Underwriters do not purchase all the Shares, this Agreement will
terminate without liability to any nondefaulting Underwriter or the Company. In
the event of a default by any Underwriter as set forth in this Article X, the
Closing Date shall be postponed for such period, not exceeding seven days, as
the U.S. Representatives shall determine in order that the required changes in
the Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
ARTICLE XI
TERMINATION OF AGREEMENT
This Agreement shall be subject to termination in the absolute
discretion of the Representatives, by notice given to the Company prior to
delivery of and payment for the Shares, if after the date hereof and prior to
such time (i) there has been, since the time of execution of this Agreement or
since the respective dates as of which information is given in the Prospectus, a
material adverse change or any development involving a prospective material
adverse change in the condition, financial or otherwise, or in the earnings or
business affairs of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
there has occurred any material adverse change in the financial markets in the
United States, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Shares, or (iii) trading in any
securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or (iv) trading generally on the
American Stock Exchange or the New York Stock Exchange or in the NASDAQ National
26
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the
National Association of Securities Dealers, Inc. or any other governmental
authority, or (v) a banking moratorium has been declared by either federal or
New York authorities.
ARTICLE XII
SURVIVAL
The respective agreements, representations, warranties,
indemnities and other statements of the Company or its officers and of the
Underwriters and the Selling Shareholders set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter, Selling Shareholder or the Company or
any of the officers, directors or controlling persons referred to in Article IX
hereof, and will survive delivery of and payment for the Shares. The provisions
of paragraph (f) of Article VII, Article VIII and Article IX hereof shall
survive the termination or cancellation of this Agreement.
ARTICLE XIII
NOTICES
All communications hereunder will be in writing and effective
only on receipt, and, if sent to each of the Representatives, will be mailed,
delivered or telecopied and confirmed to them, at the address specified on the
first page of this Agreement; if sent to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Leveraged Equity Fund
II, Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Leveraged Equity Holdings, Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Leveraged Equity Investors, Inc. or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, Discover & Co.,
will be mailed, delivered or telegraphed and confirmed to it at ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, telefax number: (▇▇▇) ▇▇▇-▇▇▇▇, attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇; if sent to Mellon Bank, N.A., solely in its capacity as Trustee for
First Plaza Group Trust (as directed by General Motors Investment Management
Corporation), will be mailed, delivered or telegraphed and confirmed to it at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, telefax number: (▇▇▇) ▇▇▇-▇▇▇▇,
attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇; or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, telefax number: (▇▇▇) ▇▇▇-▇▇▇▇, attention of the Senior Vice
President and General Counsel.
ARTICLE XIV
MISCELLANEOUS
This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Article IX hereof, and no other
person will have any right or obligation hereunder.
27
In all dealings with the Company under this Agreement, you
shall act on behalf of each of the several Underwriters, and any action under
this Agreement taken by you or by any one of you designated in Schedules II or
III hereto will be binding upon all the Underwriters.
ARTICLE XV
GOVERNING LAW
This Agreement will be governed by and construed in accordance
with the laws of the State of New York.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company, the Selling Shareholders and the several Underwriters.
Alternatively, the execution of this Agreement by the Company and the Selling
Shareholders and its acceptance by or on behalf of the Underwriters may be
evidenced by an exchange of telecopied or other written communications.
Very truly yours,
FORT ▇▇▇▇▇ CORPORATION
By:
Name:
Title:
FIRST PLAZA GROUP TRUST
By: Mellon Bank, N.A.,
as Trustee
By:
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇, DISCOVER & CO.
By:
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LEVERAGED
EQUITY FUND II, INC.
By:
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LEVERAGED
EQUITY HOLDINGS, INC.
By:
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ EQUITY
INVESTORS, INC.
By:
Name:
Title:
Accepted, ________________, 1998
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
Acting severally on behalf of themselves and the several U.S. Underwriters named
in Schedule II hereto.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By:_______________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
INTERNATIONAL LIMITED
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
Acting severally on behalf of themselves and the several International
Underwriters named in Schedule III hereto.
By ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
By:
Name:
Title:
SCHEDULE I
Selling Shareholders
Number of Maximum Number of
Selling Shareholder Firm Shares to be Sold Additional Shares to be Sold
------------------- ---------------------- ----------------------------
First Plaza Group Trust................
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇, Discover & Co..................
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Leveraged
Equity Fund II, Inc....................
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Leveraged
Equity Holdings, Inc...................
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Equity
Investors, Inc.........................
---------------------- ----------------------------
Total..................................
====================== ============================
SCHEDULE II
U.S. Underwriters
Number of
U.S. Firm
Shares to
Underwriter be Purchased
----------- ------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated......................
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated.....
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.......................................
------------
Total U.S. Firm Shares.................................
============
SCHEDULE III
International Underwriters
Number of
International
Shares To
Underwriter Be Purchased
----------- -------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited........
▇▇▇▇▇▇▇ ▇▇▇▇▇ International.......................
▇▇▇▇▇ ▇▇▇▇▇▇ Inc..................................
-------------
Total International Shares........................
=============