Exhibit 1.1
PHOTRONICS, INC
$75,000,000
__% Convertible Subordinated Notes due 2004
Underwriting Agreement
----------------------
May __, 1997
Xxxxxxx, Xxxxx & Co.,
Xxxxxxxxx, Xxxxxxxx & Company LLC,
Xxxxx Xxxxxx Inc.
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Photronics, Inc., a Connecticut 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 $75,000,000 principal amount
of the Convertible Subordinated Notes, convertible into Common
Stock, par value $.01 per share ("Stock") of the Company,
specified above (the "Firm Securities") and, at the election of
the Underwriters, up to an aggregate of $11,250,000 additional
aggregate principal amount (the "Optional Securities") (the Firm
Securities and the Optional Securities which the Underwriters
elect to purchase pursuant to Section 2 hereof are herein
collectively called the "Securities").
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 Securities and shares of the Stock issuable upon
conversion thereof has been filed with the Securities and
Exchange Commission (the "Commission"); the Initial
Registration Statement (including any pre-effective
amendment) and any post-effective amendment thereto, each in
the form heretofore delivered to you, and, excluding
exhibits thereto but including all documents incorporated by
reference in the prospectus contained therein, to you for
each of the other Underwriters, have 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 document incorporated by reference therein has heretofore
been filed with the Commission; 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 in
the Initial Registration Statement or filed with the
Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act, is 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 but excluding Form_T-1 and including (i) the
information contained in the form of final prospectus filed
with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof and deemed by virtue of
Rule 430A under the Act to be part of the Initial
Registration Statement at the time it was declared effective
and (ii) the documents incorporated by reference in the
prospectus contained in the registration statement at the
time such part of the registration statement became
effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective,
each as amended at the time such part of the registration
statement became effective, are hereinafter collectively
called the "Registration Statement"; such final prospectus,
in the form first filed pursuant to Rule 424(b) under the
Act, is 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 Item 12 of Form S-3 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; and 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;
(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 Trust Indenture Act of 1939,
as amended (the "Trust Indenture 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 Xxxxxxx, Sachs & Co. 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
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 Xxxxxxx, Xxxxx & Co.
expressly for use therein;
(d) The Registration Statement conforms, and the
Prospectus 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
Trust Indenture 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 Xxxxxxx,
Sachs & Co. 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,
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 other items or long-term debt of the Company or any of
its subsidiaries or any material adverse change, or any
development that is reasonably likely to result in a
material adverse change, in or affecting the general
affairs, management, financial position, shareholders'
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 do not materially affect the value of such property
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 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 Connecticut, 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;
the shares of Stock initially issuable upon conversion of
the Securities have been duly and validly authorized and
reserved for issuance and, when issued and delivered in
accordance with the provisions of the Securities and the
Indenture referred to below, will be duly and validly
issued, fully paid and non-assessable and will conform in
all material respects to the description of the Stock
contained in the Prospectus; and all of the issued shares of
capital stock of each subsidiary of the Company have been
duly and validly authorized and issued, are fully paid and
non-assessable and (except for directors' qualifying shares
and except as described or incorporated by reference in the
Prospectus) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or
claims;
(i) The Securities have been duly authorized and, when
issued and delivered pursuant to this Agreement, will have
been duly executed, authenticated, issued and delivered and
will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the indenture
to be dated as of March __, 1997 (the "Indenture") between
the Company and The Chase Manhattan Bank, as Trustee (the
"Trustee"), under which they are to be issued, which will be
substantially in the form filed as an exhibit to the
Registration Statement; the Indenture has been duly
authorized and duly qualified under the Trust Indenture Act
and, when executed and delivered by the Company and the
Trustee, will constitute a valid and legally binding
instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general
equity principles; and the Securities and the Indenture will
conform in all material respects to the descriptions thereof
in the Prospectus;
(j) The issue and sale of the Securities and the
compliance by the Company with all of the provisions of the
Securities, the Indenture and this Agreement and the
consummation of the transactions herein and therein
contemplated 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, 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
Securities or the consummation by the Company of the
transactions contemplated by this Agreement or the
Indenture, except the registration under the Act of the
Securities and the shares of Stock issuable upon conversion
thereof, the qualification of the Indenture under the Trust
Indenture 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 Securities and the Stock by
the Underwriters;
(k) Neither the Company nor any of its subsidiaries is
in violation of its Certificate of Incorporation or By-laws
or in default in the performance or observance of any
material obligation, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by
which it or any of its properties may be bound;
(l) The statements set forth in the Prospectus under
the caption "Description of Notes" and "Description of
Capital Stock", insofar as they purport to constitute a
summary of the terms of the Securities and the Stock, under
the caption "Certain Federal Income Tax Considerations", and
under the caption "Underwriting", insofar as they purport to
describe the provisions of the laws and documents referred
to therein, are accurate, complete and fair in all material
respects;
(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, if determined adversely to the Company
or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the current or
future financial position, shareholders' equity or results
of operations 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;
(n) The Company is not and, after giving effect to the
offering and sale of the Securities, 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");
(o) 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;
(p) To the Company's knowledge, Deloitte & Touche 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; and
(q) The Company and its subsidiaries (i) are in
compliance with any and all applicable foreign, federal,
state and local laws and regulations relating to the
protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all
permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except
where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such
permits, licenses or approvals would not, individually or in
the aggregate, have a material adverse effect on the current
or future consolidated financial position, shareholders'
equity or results of operations of the Company and its
subsidiaries taken as a whole.
2. Subject to the terms and conditions herein set forth,
(a) 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 a purchase price of
.....% of the principal amount thereof, plus accrued interest, if
any, from May __, 1997 to the Time of Delivery hereunder, the
principal amount of Securities 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 Securities 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 same purchase price set forth in clause
(a) of this Section 2, that portion of the aggregate principal
amount of the Optional Securities as to which such election shall
have been exercised (to be adjusted by you so as to eliminate
fractions of $1,000,) determined by multiplying such aggregate
principal amount of Optional Securities by a fraction, the
numerator of which is the maximum aggregate principal amount of
Optional Securities which such Underwriter is entitled to
purchase as set forth opposite the name of such Underwriter in
Schedule I hereto and the denominator of which is the maximum
aggregate principal amount of Optional Securities which all of
the Underwriters are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right
to purchase at their election up to ........ aggregate principal
amount of Optional Securities, at the purchase price set forth in
clause (a) of the first paragraph of this Section 2, for the sole
purpose of covering overallotments in the sale of Firm
Securities. Any such election to purchase Optional Securities
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 principal amount of
Optional Securities to be purchased and the date on which such
Optional Securities are to be delivered, as determined by you but
in no event earlier than the First Time of Delivery (as defined
in Section (4) hereof) or, unless you and the Company otherwise
agree in writing, earlier than two or later than ten business
days after the date of such notice.
3. Upon the authorization by you of the release of the
Firm Securities, the several Underwriters propose to offer the
Firm Securities for sale upon the terms and conditions set forth
in the Prospectus.
4. (a) The Securities to be purchased by each Underwriter
hereunder will be represented by one or more definitive global
Securities in book-entry form which will be deposited by or on
behalf of the Company with The Depository Trust Company ("DTC")
or its designated custodian. The Company will deliver the
Securities to Xxxxxxx, Xxxxx & Co., for the account of each
Underwriter, against payment by or on behalf of such Underwriter
of the purchase price therefor by wire transfer to the order of
the Company in Federal (same day) funds, by causing DTC to credit
the Securities to the account of Xxxxxxx, Sachs & Co. at DTC.
The Company will cause the certificates representing the
Securities to be made available to Xxxxxxx, Xxxxx & Co. for
checking at least twenty-four hours prior to the Time of Delivery
(as defined below) at the office of DTC or its designated
custodian (the "Designated Office"). The time and date of such
delivery and payment shall be, with respect to the Firm
Securities, 9:30 a.m., New York City time, on May __, 1997 or
such other time and date as Xxxxxxx, Sachs & Co. and the Company
may agree upon in writing, and, with respect to the Optional
Securities, 9:30 a.m., New York City time, on the date specified
by Xxxxxxx, Xxxxx & Co. in the written notice given by Xxxxxxx,
Sachs & Co. of the Underwriters' election to purchase such
Optional Securities, or such other time and date as Xxxxxxx,
Sachs & Co. and the Company may agree upon in writing. Such time
and date for delivery of the Firm Securities is herein called the
"First Time of Delivery", such time and date for delivery of the
Optional Securities, if not the First Time of Delivery, is herein
called the "Second Time of Delivery", and each such time and date
for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at the Time of
Delivery by or on behalf of the parties hereto pursuant to
Section 7 hereof, including the cross-receipt for the Securities
and any additional documents requested by the Underwriters
pursuant to Section 7(k) hereof, will be delivered at the offices
of Ropes & Xxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000
(the "Closing Location"), and the Securities will be delivered at
the Designated Office, all at the Time of Delivery. A meeting
will be held at the Closing Location at ......... p.m., New York
City time, on the New York Business Day next preceding the Time
of Delivery, at which meeting the final drafts of the documents
to be delivered pursuant to the preceding sentence will be
available for review by the parties hereto. For the purposes of
this Section 4, "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 City are generally
authorized or obligated by law or executive order to close.
5. 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 earlier 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 such Time of Delivery which shall be
disapproved by you promptly after reasonable notice thereof; to
advise you, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement 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 the
Securities; 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, of the suspension of the qualification
of the Securities or the shares of Stock issuable upon conversion
of the Securities 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 promptly use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as
you may reasonably request to qualify the Securities and the
shares of Stock issuable upon conversion of the Securities 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 the Securities, 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, 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 the
offering or sale of the Securities and the shares of Stock
issuable upon conversion of the Securities 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 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, the Exchange Act or the Trust Indenture 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; and in case any Underwriter is required
to deliver a prospectus in connection with sales of any of the
Securities and the shares of Stock issuable upon conversion of
the Securities 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;
(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 and including the date 90 days after the date
of the Prospectus, not to offer, sell, contract to sell or
otherwise dispose of, except as provided hereunder any securities
of the Company that are substantially similar to the Securities
or the Stock, 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 (i) pursuant to employee stock option
plans existing on, or upon the conversion or exchange of
convertible or exchangeable securities outstanding as of, the
date of this Agreement and (ii) as consideration for acquisitions
of businesses, property or assets, provided that the recipient of
any shares of Stock so issued shall agree in writing for the
benefit of the Underwriters that such shares shall remain subject
to the restrictions of this Section 5(e), which agreement the
Company agrees not to waive), without your prior written
consent;
(f) To furnish to the holders of the Securities, at
the time the Company distributes such reports to its
shareholders, an annual report (including a balance sheet and
statements of income, shareholders' equity and cash flows of the
Company and its consolidated subsidiaries certified by
independent public accountants) and (beginning with the fiscal
quarter ending after the effective date of the Registration
Statement) consolidated summary financial information in
reasonable detail of the Company and its subsidiaries for each of
the first three quarters of each period year;
(g) During a period of five years from the effective
date of the Registration Statement, upon your written request, to
furnish to you copies of all reports or other communications
(financial or other) furnished to shareholders, and to 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 Securities or any
class of securities of the Company is listed; and (ii) such
additional 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 Company and its subsidiaries
are consolidated in reports furnished to its shareholders
generally or to the Commission);
(h) To use the net proceeds received by it from the
sale of the Securities pursuant to this Agreement in the manner
specified in the Prospectus under the caption "Use of Proceeds";
(i) To reserve and keep available at all times, free
of preemptive rights, shares of Stock for the purpose of enabling
the Company to satisfy any obligations to issue shares of its
Stock upon conversion of the Securities;
(j) To use its best efforts to list, subject to notice
of issuance, the shares of Stock issuable upon conversion of the
Securities on the Nasdaq National Market ("NASDAQ"); and
(k) 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.
6. 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 Securities and the shares of Stock issuable
upon conversion of the Securities 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, the Indenture, the Blue Sky and
Legal Investment Memoranda, closing documents (including any
compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the
Securities and the shares of Stock issuable upon conversion of
the Securities for offering and sale under state securities laws
as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky and legal
investment surveys not to exceed $5,000; (iv) any fees charged by
securities rating services for rating the Securities; (v) the
filing fees incident to any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale
of the Securities; (vi) the cost of preparing the Securities;
(vii) the fees and expenses of the Trustee and any agent of the
Trustee and the fees and disbursements of counsel for the Trustee
in connection with the Indenture and the Securities; and (viii)
all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 8 and 11 hereof,
the Underwriters will pay all of their own costs and expenses,
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.
7. 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 such 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 5(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) Ropes & Xxxx, counsel for the Underwriters, shall
have furnished to you such opinion or opinions (a draft of each
such opinion is attached as Annex II(a) hereto), dated such Time
of Delivery, with respect to the matters covered in paragraphs
(i), (ii) (with respect to the shares of Stock initially issuable
upon conversion of the Securities), (vi), (vii), (viii), (xi) and
(xvi) of subsection (c) below as well as such 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) Xxxx & Priest LLP, counsel for the Company, shall
have furnished to you their written opinion (a draft of such
opinion is attached as Annex II(b) hereto) dated such 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 Connecticut, with corporate power and
authority 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 of Stock initially issuable upon conversion
of the Securities have been duly and validly authorized and
reserved for issuance and, when issued and delivered in
accordance with the provisions of the Securities and the
Indenture, will be duly and validly issued and fully paid
and non-assessable, and will conform in all material
respects to the description of the Stock contained in the
Prospectus;
(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, to such counsel's knowledge, it owns or leases
properties or conducts any business so as to require such
qualification except where the failure to so qualify would
not have a material adverse effect on the Company and its
subsidiaries taken as a whole (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) 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; and all of the issued shares of capital stock
of each such subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable,
and (except for directors' qualifying shares) are owned
directly or indirectly by the Company, to such counsel's
knowledge, free and clear of all liens, encumbrances,
equities or claims (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 or its subsidiaries, provided
that such counsel shall state that they believe that both
you and they are justified in relying upon such opinions and
certificates);
(v) To 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,
if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
material adverse effect on the current or future
consolidated financial position, shareholders' equity or
results of operations of the Company and its subsidiaries
taken as a whole; and, to such counsel's knowledge, no such
proceedings are threatened by governmental authorities or by
others;
(vi) This Agreement has been duly authorized,
executed and delivered by the Company;
(vii) The Securities have been duly
authorized, executed, issued and delivered and, when duly
authenticated in accordance with the terms of the Indenture,
constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture;
and the Securities and the Indenture conform in all material
respects to the descriptions thereof in the Prospectus;
(viii) The Indenture has been duly authorized,
executed and delivered by the Company and constitutes a
valid and legally binding instrument of the Company,
enforceable in accordance with its terms (provided that such
counsel need not express any opinion regarding the enforce-
ability or effect of Section 515 of the Indenture), subject,
as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles
including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief,
regardless of whether such validity and binding effect are
considered in a proceeding in equity or at law; and the
Indenture has been duly qualified under the Trust Indenture
Act;
(ix) The issue and sale of the Securities being
issued at such Time of Delivery and the compliance by the
Company with all of the provisions of the Securities, the
Indenture and this Agreement and the consummation of the
transactions herein and therein contemplated will not
conflict with or result in a material 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 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 of any court or
governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their
properties;
(x) 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 Securities being issued at such Time of Delivery
or the consummation by the Company of the transactions
contemplated by this Agreement or the Indenture, except such
as have been obtained under the Act and the Trust Indenture
Act, such as may be required under the Act in connection
with the shares of Stock issuable upon conversion of the
Securities and such consents, approvals, authorizations,
registrations or qualifications as may be required under
state securities or Blue Sky laws (as to which such counsel
need not express any opinion) in connection with the
purchase and distribution of the Securities by the
Underwriters;
(xi) The statements set forth in the Prospectus
under the caption "Description of Notes" and "Description of
Capital Stock", insofar as they purport to constitute a
summary of the terms of the Securities and the Stock, under
the caption "Certain Federal Income Tax Considerations", and
under the caption "Underwriting", insofar as they purport to
describe the provisions of the laws and documents referred
to therein, are accurate, complete and fair in all material
respects;
(xii) 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;
(xiii) 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 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 no fact came to such
counsel's attention which causes them 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 with the Commission
under the Act or the Exchange Act , an untrue statement of a
material fact or omitted to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made when such documents
were so filed, not misleading; and
(xiv) The Registration Statement and the
Prospectus and any further amendments and supplements
thereto made by the Company prior to such Time of Delivery
(other than the financial statements 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 Trust Indenture Act and the
rules and regulations thereunder; although they do not
assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration
Statement or the Prospectus, except for those referred to in
the opinion in subsection (xi) of this Section 7(c), no fact
came to such counsel's attention which causes them to
believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the
Company prior to such Time of Delivery (other than the
financial statements 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 such Time of
Delivery (other than the financial statements 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 the light of the circumstances under
which they were made, not misleading or that, as of such
Time of Delivery, either the Registration Statement or the
Prospectus or any further amendment or supplement thereto
made by the Company prior to such Time of Delivery (other
than the financial statements 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
the light of the circumstances under which they were made,
not misleading; and they do 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;
(d) On the date of the Prospectus at a time prior to
the execution of this Agreement, at 9:30 a.m., New York City
time, on the effective date of any post-effective amendment to
the Registration Statement filed subsequent to the date of this
Agreement and also at each Time of Delivery, Deloitte & Touche
LLP shall have furnished to you a letter or letters, dated the
respective dates 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);
(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, shareholders' equity or results of operations of the
Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such
case described in Clause (i) or (ii), is in the judgment of the
Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering
or the delivery of the Securities being issued at such Time of
Delivery 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 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;
(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 or on NASDAQ; (ii) a suspension or material
limitation in trading in the Company's securities on NASDAQ;
(iii) a general moratorium on commercial banking activities
declared by either Federal or New York State authorities; or (iv)
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 (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering
or the delivery of the Securities being issued at such Time of
Delivery on the terms and in the manner contemplated in the
Prospectus;
(h) The shares of Stock issuable upon conversion of
the Securities shall have been duly listed, subject to notice of
issuance, on NASDAQ;
(i) The Company shall have obtained and delivered to
you an agreement in writing prior to the date hereof from each
executive officer, director and each beneficial owner of shares
of Common Stock as you shall have requested that such person will
not during the period beginning from the date hereof and
continuing to and including the date 90 days after the date of
the Prospectus offer, sell, contract to sell or otherwise dispose
of, except as provided hereunder, any securities of the Company
that are substantially similar to the Securities or the Stock,
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 or exchange of convertible or exchangeable securities
outstanding as of, the date of this Agreement), without your
prior written consent;
(j) The Company shall have complied with the
provisions of Section 5(c) hereof with respect to the furnishing
of prospectuses on the New York Business Day next succeeding the
date of this Agreement; and
(k) The Company shall have furnished or caused to be
furnished to you at such 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 such Time of Delivery, as to the performance by the Company
of all of its obligations hereunder to be performed at or prior
to such 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.
8. (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 Xxxxxxx, Xxxxx & Co. 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 Xxxxxxx, Sachs & Co. 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
with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect
of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise
or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on
behalf of any indemnified party.
(d) If the indemnification provided for in this
Section 8 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 Securities underwritten by it
and distributed to the public were offered to the public exceeds
the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (d) to contribute
are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section
8 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 8 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 and to each person, if any,
who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation
to purchase the Securities which it has agreed to purchase
hereunder, you may in your discretion arrange for you or another
party or other parties to purchase such Securities on the terms
contained herein at a Time of Delivery. If within thirty-six
hours after such default by any Underwriter you do not arrange
for the purchase of such Securities, then the Company shall be
entitled to a further period of thirty-six hours within which to
procure another party or other parties reasonably satisfactory to
you to purchase such Securities 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
Securities, or the Company notifies you that it has so arranged
for the purchase of such Securities, you or the Company shall
have the right to postpone such Time of Delivery 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 Securities.
(b) If, after giving effect to any arrangements for
the purchase of the Securities of a defaulting Underwriter or
Underwriters by you and the Company as provided in subsection (a)
above, the aggregate principal amount of such Securities which
remains unpurchased does not exceed one-eleventh of the aggregate
principal amount of all the Securities to be purchased at such
Time of Delivery, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the principal
amount of Securities which such Underwriter agreed to purchase
hereunder at such Time of Delivery and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share
(based on the principal amount of Securities which such
Underwriter agreed to purchase hereunder) of the Securities 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 Securities of a defaulting Underwriter or
Underwriters by you and the Company as provided in subsection (a)
above, the aggregate principal amount of Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal
amount of all the Securities to be purchased at such Time of
Delivery, or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting
Underwriters to purchase Securities of a defaulting Underwriter
or Underwriters, then this Agreement (or, with respect to the
Second Time of Delivery, the obligation of the Underwriters to
purchase and of the Company to sell the Optional Securities)
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 6 hereof and the indemnity and contribution
agreements in Section 8 hereof; but nothing herein shall relieve
a defaulting Underwriter from liability for its default.
10. 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 Securities.
11. If this Agreement shall be terminated pursuant to
Section 9 hereof, the Company shall not then be under any
liability to any Underwriter except as provided in Sections 6 and
8 hereof; but, if for any other reason, any Securities 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 the Securities, but the Company shall then be under
no further liability to any Underwriter except as provided in
Sections 6 and 8 hereof.
12. 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
jointly or by Xxxxxxx, Xxxxx & Co. on behalf of you as the
representatives.
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 as the representatives in care of Xxxxxxx, Sachs & Co., 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department; 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 8(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.
13. This Agreement shall be binding upon, and inure solely
to the benefit of, the Underwriters, the Company and, to the
extent provided in Sections 8 and 10 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 of any of the Securities from any Underwriter shall
be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of this Agreement. As
used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
15. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
16. 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 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,
Photronics, Inc.
By:_____________________________
Name:
Title:
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
Xxxxxxxxx, Xxxxxxxx & Company LLC
Xxxxx Xxxxxx Inc.
By:_________________________
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Underwriters
SCHEDULE 1
Principal
Amount of
Optional
Principal Securities
Amount of to be Purchased
Firm Securities if Maximum
to be Option
Underwriter Purchased Exercised
------------ --------- -----------
Xxxxxxx, Sachs & Co . . $ $
Xxxxxxxxx, Xxxxxxxx &
Company LLC . . . . . .
Xxxxx Xxxxxx Inc. . . .
----------- -----------
Total . . . . $75,000,000 $11,250,000
=========== ===========
ANNEX I
Pursuant to Section 7(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 (and, if
applicable, prospective financial statements and/or pro
forma financial information) examined by them and included
or incorporated by reference in the Registration Statement
or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act or
the Exchange Act, as applicable, 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 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, as indicated in their
reports thereon, copies of which have been furnished to the
representatives of the Underwriters (the "Representatives");
(iii) They have made a review in accordance with
standards established by the American Institute of Certified
Public Accountants of the unaudited condensed consolidated
statement of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus and/or included in the Company's quarterly report
on Form 10-Q incorporated by reference into the Prospectus
as indicated in their reports thereon copies of which have
been separately furnished to the Representatives; 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 (vi)(A)(i) below comply as to form
in the related in all material respects 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) The unaudited selected financial information with
respect to the consolidated results of operations and
financial position of the Company for the five most recent
fiscal years included in the Prospectus and included or
incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees
with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements
for such five fiscal years which were included or
incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(v) 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 in all material respects with the disclosure
requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not
constituting an examination 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 or incorporated by reference 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) (i) the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus and/or included or incorporated by reference
in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not
comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act
and the related published rules and regulations, or
(ii) any material modifications should be made to the
unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements
of cash flows included or incorporated by reference in
the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus, for them
to be in conformity with generally accepted accounting
principles;
(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 or incorporated by reference in the Company's
Annual Report on Form 10-K for the most recent fiscal
year;
(C) the unaudited financial statements which were
not included in the Prospectus but from which were
derived the unaudited condensed financial statements
referred to in Clause (A) and any unaudited income
statement data and balance sheet items included in the
Prospectus and referred to in Clause (B) were not
determined on a basis substantially consistent with the
basis for the audited financial statements included or
incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated
condensed financial statements included or incorporated
by reference 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;
(E) 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 rights, upon earn-outs
of performance shares and upon conversions of
convertible securities, in each case which were
outstanding on the date of the latest balance sheet
included or incorporated by reference 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
stockholders' equity or other items specified by the
Representatives, or any increases in any items
specified by the Representatives, in each case as
compared with amounts shown in the latest balance sheet
included or incorporated by reference 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; and
(F) for the period from the date of the latest
financial statements included or incorporated by
reference in the Prospectus to the specified date
referred to in Clause (E) there were any decreases in
consolidated net revenues or operating profit or the
total or per share amounts of consolidated net income
or other items specified by the Representatives, or any
increases in any items specified by the
Representatives, in each case as compared with the
comparable period of the preceding year and with any
other period of corresponding length specified by the
Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred
or may occur or which are described in such letter; and
(vii) In addition to the examination referred to in
their report(s) included or incorporated by reference in the
Prospectus and the limited procedures, inspection of minute
books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an
examination in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and
financial information specified by the Representatives which
are derived from the general accounting records of the
Company and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference) or in Part
II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives or in documents
incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting
records of the Company and its subsidiaries and have found
them to be in agreement.
