Exhibit 99.1
AGREEMENT dated as of February [ ], 1996,
among POLAROID CORPORATION, a Delaware corporation (the
"Company"), CORPORATE PARTNERS, L.P., a Delaware limited
partnership ("Corporate Partners"), CORPORATE OFFSHORE
PARTNERS, L.P., a Bermuda limited partnership ("Corporate
Offshore Partners"), and STATE BOARD OF ADMINISTRATION OF
FLORIDA, a body corporate organized under the constitution
of the State of Florida, solely in its capacity as a
managed account under an Investment Management Agreement
with Corporate Advisors, L.P. ("Florida" and, together
with Corporate Partners and Corporate Offshore Partners,
the "Sellers").
WHEREAS pursuant to an Exchange Agreement dated as of
October 7, 1991 (the "Exchange Agreement"), among the Company and the
Sellers, the Company issued to the Sellers $140,000,000 aggregate
principal amount of the Company's 8% Subordinated Convertible Debentures
Due 2001 (the "Debentures"). The Debentures are convertible into shares
of Common Stock, par value $1.00 per share (the "Common Stock"), of the
Company;
WHEREAS the Sellers have exercised their right to require the
Company to effect the registration under the Securities Act of 1933
pursuant to a registration statement on Form S-3 (the "Registration
Statement") of the offering and sale of the Debentures and the Common
Stock pursuant to the Registration Rights Agreement dated as of
October 7, 1991 (the "Registration Rights Agreement"), between the
Company and the Sellers (capitalized terms used but not defined herein
having the meanings assigned to them in such Agreement);
WHEREAS the Registration Rights Agreement provides that, as a
condition to including any Registrable Securities in any registration
statement, the Company shall have received an undertaking from the
Sellers to indemnify and hold harmless the Company and certain other
Persons with respect to certain matters; and
WHEREAS the Company and the Sellers are entering into this
agreement to provide for such indemnity and certain other matters in
connection with such registration of the Debentures and the Common Stock.
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NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein set forth, the parties agree as follows:
SECTION 1. Indemnification. (a) Indemnification by the
Sellers. Each of the Sellers will, and hereby does, indemnify and hold
harmless the Company and each director of the Company, each officer of
the Company and each other Person, if any, who controls the Company
within the meaning of the Securities Act against any losses, claims,
damages or liabilities, joint or several, to which the Company or any
such director, officer or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings, whether commenced or threatened,
in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the
Registration Statement, any preliminary prospectus, final prospectus or
summary prospectus contained therein, or any amendment or supplement
thereto, or any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading, if such statement or alleged statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Company through an instrument duly executed
by such Seller specifically stating that it is for use in the preparation
of the Registration Statement and such preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement, and each Seller
will severally, and not jointly, reimburse the Company and each such
director, officer and controlling Person for any legal or any other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, liability, action or proceeding. Such
indemnity shall remain in full force and effect, regardless of any
investigation made by or on behalf of the Company or any such director,
officer or controlling person and shall survive the transfer of such
securities by each Seller.
(b) Information Furnished to the Company. The information
indicated in Exhibit A hereto is written information furnished to the
Company by each Seller, to the extent it relates to such Seller, for use
in the preparation of the Registration Statement and such preliminary
prospectus, final prospectus, summary prospectus and amendment or
supplement.
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(c) Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or
proceeding involving a claim referred to in Section 1(a), such
indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the latter of the
commencement of such action, provided that the failure of any indemnified
party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under Section 1(a), except to the
extent that the indemnifying party is actually prejudiced by such failure
to give notice. In case any such action is brought against an
indemnified party, the indemnifying party shall be entitled to
participate in and, unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist in respect of such claim, to assume the defense
thereof, jointly with any other indemnifying party similarly notified to
the extent that it may wish, with counsel reasonably satisfactory to such
indemnified 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 for any
legal or other expenses subsequently incurred by the latter in connection
with the defense thereof other than reasonable costs of investigation.
No indemnifying party shall be liable for any settlement of any action or
proceeding effected without its written consent. No indemnifying party
shall, without the consent of the indemnified party, consent to entry of
any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to
such indemnified party of a release from all liability in respect of such
claim or litigation.
(d) Contribution. If the indemnification provided for in this
Section 1 shall for any reason be held by a court to be unavailable to an
indemnified party in respect of any loss, claim, damage or liability, or
any action in respect thereof, then, in lieu of the amount paid or
payable under paragraph (a) hereof, the indemnified party and the
indemnifying party under subparagraph (a) hereof shall contribute to the
aggregate losses, claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with investigating the
same), (i) in such proportion as is appropriate to reflect the relative
fault of the Company and each Seller which resulted in such loss, claim,
damage or liability, or action in respect thereof, with respect to the
statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant
equitable considerations, or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion
as shall be appropriate to reflect the relative benefits received by the
Company and such Seller from the offering of the securities covered by
the Registration Statement. 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. Each Seller's obligations to
contribute as provided in this paragraph (d) are several in proportion to
the relative value of its respective Registrable Securities covered by
the Registration Statement and not joint. In addition, no Person shall
be obligated to contribute hereunder any amounts in payment for any
settlement of any action or claim effected without such Person's consent,
which consent shall not be unreasonably withheld.
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(e) Other Indemnification. Indemnification and contribution
similar to that specified in the preceding paragraphs of this Section 1
(with appropriate modifications) shall be given severally, and not
jointly, by each Seller with respect to any required registration or
other qualification of securities in connection with the Registration
Statement under any Federal or state law or regulation of any
governmental authority other than the Securities Act.
(f) Indemnification Payments. The indemnification and
contribution required by this Section 1 shall be made by periodic
payments of the amount thereof during the course of the investigation or
defense, as and when bills are received or expense, loss, damage or
liability is incurred.
(g) Indemnification by the Company. The Company acknowledges
its indemnification and contribution obligations to the Sellers pursuant
to the Registration Rights Agreement.
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SECTION 2. Indenture. Pursuant to the Registration Rights
Agreement, the Company and State Street Bank and Trust Company, as
trustee, intend to enter into an indenture (the "Indenture")
incorporating the terms of the Debentures concurrently with the first
sale of any of the Debentures under the Registration Statement. The
Debentures so sold shall, as of the time of such sale, automatically be
deemed to be amended and restated to be outstanding under the Indenture.
Thereafter, any additional Debentures sold from time to time under the
Registration Statement shall, as of the time of such sale, automatically
be likewise deemed to be amended and restated so as to be outstanding
under the Indenture. Upon any such sale, Debentures in the amounts sold
shall be executed by the Company, authenticated pursuant to the Indenture
and delivered to the Seller of such Debentures or its nominee, whereupon
the Debentures so sold in the form they are currently outstanding shall
be deemed cancelled. Prior to the delivery of such Debentures to the
Seller or its nominee, if any consents or authorizations are required in
order to effectuate the transactions contemplated by this Section 2,
including any consents or authorizations from any Person in connection
with the trust in which the Debentures have been held, the Seller shall
so advise the Company.
SECTION 3. Transfer Restrictions. The restrictions contained
in the Exchange Agreement relating to the transfer of the Debentures and
Voting Securities (as defined in the Exchange Agreement) and the
provisions of the Exchange Agreement relating to the termination of such
transfer restrictions shall continue in full force and effect
notwithstanding the nonincorporation into the Debentures to be issued
under the Indenture of the reference to such transfer restrictions
contained in the Debentures in the form in which they are currently
outstanding.
SECTION 4. Miscellaneous. (a) Severability. If any term,
provision, covenant or restriction of this Agreement is held by a court
of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
(b) Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to the transactions
contemplated hereby.
(c) Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same
agreement, and shall become
effective when one or more of the counterparts have been signed by each
party and delivered to the other parties.
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(d) Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of
Delaware.
IN WITNESS WHEREOF, the Company and the Sellers have caused
this Agreement to be duly executed, all as of the date first above
written.
POLAROID CORPORATION,
by
--------------------------------
Name:
Title:
CORPORATE PARTNERS, L.P.,
by Corporate Advisors, L.P.
General Partner
by LFCP Corp.
General Partner
by
--------------------------
Name:
Title:
CORPORATE OFFSHORE PARTNERS, L.P.,
by Corporate Advisors, L.P.
General Partner
by LFCP Corp.
General Partner
by
----------------------------
Name:
Title:
0
XXXXX XXXXX XX XXXXXXXXXXXXXX
XX XXXXXXX,
by Corporate Advisors, L.P.
Attorney-In-Fact
by LFCP Corp.
General Partner
by
----------------------
Name:
Title:
EXHIBIT A
(1) All of the information set forth under the caption "SELLING
SECURITYHOLDERS", other than the first, second and third paragraphs
immediately following the third footnote to the table included therein.
(2) All of the information set forth under the caption "PLAN OF
DISTRIBUTION".
(3) A statement shall not be included to the effect that the
Sellers may be deemed to be "underwriter" within the meaning of the
Securities Act of 1933 or that any profit on the resale of the Debentures
or the Common Stock issuable upon conversion of the Debentures received
by them may be deemed to be underwriting discounts or commissions under
the Securities Act of 1933. 1/
____________________
1/ Alternatively, a statement to this effect can be included in the
Registration Statement
