EXHIBIT 1
ECOLAB INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
_______, 199_
To the several Underwriters named
in the respective Terms Agreements
hereinafter described
Dear Ladies and Gentlemen:
Ecolab Inc., a Delaware corporation ("ECOLAB" or the "COMPANY"),
proposes to issue and sell its senior unsecured debt securities (the "DEBT
SECURITIES") in one or more offerings on the terms and conditions determined at
the time of sale to the underwriters named in Annex I hereto (the "UNDERWRITERS"
or "YOU"), for whom you (the "REPRESENTATIVE" or "YOU") are acting as
representative. The Debt Securities will be issued pursuant to an indenture
dated as of November 1, 1996 (the "INDENTURE") between the Company and The First
National Bank of Chicago, as trustee (the "TRUSTEE").
From time to time, the Company may enter into one or more terms
agreements in the form set forth in Annex I hereto (each a "TERMS AGREEMENT")
that provide for the sale of such designated Debt Securities to, and the
purchase and offering thereof by, the Underwriters named therein which terms
will include the underwriter or underwriters named therein, whether acting alone
in the sale of Debt Securities or as members of an underwriting syndicate, and
the provisions set forth herein (except for provisions which relate to
securities other than Debt Securities designated in the applicable Terms
Agreement) will be incorporated by reference in any such Terms Agreement. The
applicable Terms Agreement, including the provisions incorporated therein by
reference, is herein referred to as this "AGREEMENT."
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The Company
represents, warrants and agrees that:
(a) A registration statement on Form S-3 (No. ________),
including a prospectus relating to the Debt Securities of the Company for the
registration of such securities under the Securities Act of 1933, as amended
(the "SECURITIES ACT"), has (i) been prepared by the Company in material
conformity with the requirements of the Securities Act and the rules and
regulations thereunder (the "RULES AND REGULATIONS") of the United States
Securities and Exchange Commission (the "COMMISSION"), (ii) been filed with the
Commission under the Securities Act and (iii) become effective under the
Securities Act; and the Indenture has been qualified under the Trust Indenture
Act of 1939, as amended (the "TRUST INDENTURE ACT"). Copies of such registration
statement and any amendments thereto have been delivered by the Company to you.
As used in this Agreement, "EFFECTIVE DATE" means the date and the time as of
which such registration statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission; "REGISTRATION
STATEMENT" means the registration statement as amended to the date of this
Agreement, including all documents incorporated or deemed incorporated by
reference therein and the exhibits thereto; "BASIC PROSPECTUS" means the
prospectus included in the Registration Statement; "PRELIMINARY PROSPECTUS"
means any preliminary form of Prospectus (as defined herein) specifically
relating to designated Debt Securities, in the form first filed with, or
transmitted for filing to, the Commission pursuant to Rule 424 of the Rules and
Regulations; "PROSPECTUS SUPPLEMENT" means any prospectus supplement
specifically relating to designated Debt Securities, in the form first filed
with, or transmitted for filing to, the Commission pursuant to Rule 424 under
the Securities Act; "PROSPECTUS" means the Basic Prospectus together with the
Prospectus Supplement, except that if such Basic Prospectus is amended or
supplemented on or prior to the date on which the Prospectus Supplement was
first filed pursuant to Rule 424, the term "Prospectus" will refer to the Basic
Prospectus as so amended or supplemented and as supplemented by the Prospectus
Supplement; "BASIC PROSPECTUS," "PROSPECTUS", "PRELIMINARY PROSPECTUS" and
"PROSPECTUS SUPPLEMENT" include in each case the documents, if any, filed by the
Company with the Commission pursuant to the United States Securities Exchange
Act of 1934, as amended (the "EXCHANGE ACT"), and incorporated by reference
therein; and "SUPPLEMENT" and "AMENDMENT" will be deemed to refer to and include
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any documents incorporated by reference pursuant to Item 12 of Form S-3 under
the Securities Act that are filed subsequent to the date of the Basic Prospectus
by the Company with the Commission pursuant to the Exchange Act. Any reference
to any amendment to the Registration Statement will be deemed to include any
annual report of the Company filed with the Commission pursuant to Section 13(a)
or 15(d) of the Exchange Act after the Effective Date that is incorporated by
reference in the Registration Statement.
(b) The Registration Statement conforms in all material
respects, and the Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus will, when they become effective or are
filed with the Commission, as the case may be, conform in all material respects,
to the requirements of the Securities Act and the Rules and Regulations
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 (in
the case of the Prospectus, in light of the circumstances in which they were
made) not misleading; PROVIDED, HOWEVER, that no representation or warranty is
made as to (i) that part of the Registration Statement which will
constitute the Statement of Eligibility on Form T-1 ("FORM T-1") under the Trust
Indenture Act of the Trustee and (ii) information contained in or omitted from
the Registration Statement or the Prospectus in reliance upon and in conformity
with written information furnished to the Company by or on behalf of any
Underwriter specifically for use in the Registration Statement or the
Prospectus;
(c) The Indenture conforms in all material respects to the
requirements of the Trust Indenture Act and the applicable rules and regulations
thereunder;
(d) The documents incorporated or deemed to be 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 with the
requirements of the Securities Act or the Ex-
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change Act, as applicable, and the rules and regulations of the Commission
thereunder, and, when read together with the Prospectus on the filing date of
the Prospectus and any amendment or supplement thereto, 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, 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 Securities Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and, when read together with
the Prospectus on the dates such documents become effective or are filed with
the Commission, as the case may be, 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;
(e) The Company and each of its subsidiaries that is a
significant subsidiary, as defined in Rule 405 of the Securities Act
(individually a "SIGNIFICANT SUBSIDIARY" and, collectively, the "SIGNIFICANT
SUBSIDIARIES") have been duly incorporated and validly existing as corporations
in good standing under the laws of their respective jurisdictions of
incorporation, are duly qualified to do business and are in good standing as
foreign corporations in each jurisdiction in which their respective ownership or
lease of property or the conduct of their respective businesses requires such
qualification, except where the failure to be so qualified and in good standing
would not be reasonably expected to have a material adverse effect on the
consolidated financial condition, results of operations or business of the
Company and its subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT"),
and where so qualified, have all corporate power and authority necessary to own,
lease or operate their respective properties and to conduct the businesses in
which they are engaged as described in the Prospectus;
(f) The Debt Securities have been duly and validly authorized by
the Company and, when duly executed, issued and delivered by the Company
pursuant to this Agreement and the Terms Agreement, and authenticated
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by the Trustee pursuant to the provisions of the Indenture, against payment
therefor by the Underwriters as provided in this Agreement, will constitute
valid and legally binding obligations of the Company entitled to the benefits of
the Indenture and enforceable against the Company in accordance with their
terms, except as the enforceability thereof may be subject to (i) bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors' rights generally and (ii) general principles
of equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity); and the Debt Securities, when issued and
delivered, will conform in all material respects to the description thereof
contained in the Prospectus;
(g) The Indenture has been duly authorized by the Company, and
when duly executed by the proper officers of the Company (assuming due execution
and delivery by the Trustee) and delivered by the Company, will constitute a
valid and legally binding obligation of the Company enforceable against the
Company in accordance with its terms, except as the enforceability thereof may
be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance
or transfer, moratorium or similar laws affecting creditors' rights generally
and (ii) general principles of equity (regardless of whether such enforceability
is considered in a proceeding at law or in equity); and the Indenture conforms
in all material respects to the description thereof contained in the Prospectus;
(h) This Agreement has been duly authorized, executed and
delivered by the Company;
(i) The execution, delivery and performance of this Agreement
and the Indenture by the Company, and the consummation of the transactions
contemplated hereby and thereby, and the issuance and delivery of the Debt
Securities 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, lien,
charge or encumbrance upon any property or mortgage, deed of trust, loan
agreement, or other agreement or instrument to which the Company or any of its
Significant Subsidiaries is a party or by which it or any of them is bound or to
which any of the property or assets of the
5
Company or any of its Significant Subsidiaries is subject, except for such
conflicts, breaches, violations or defaults which would not have a Material
Adverse Effect; nor will such action result in any violation of the provisions
of the Restated Certificate of Incorporation or by-laws of the Company; nor will
such action result in any violation of the provisions of 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 Significant Subsidiaries or any of
their material properties or assets except for violations which would not have a
Material Adverse Effect; and, except for the registration of the Debt Securities
under the Securities Act, the qualification of the Indenture under the Trust
Indenture Act, and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and applicable state or
foreign securities or other Blue Sky laws in connection with the purchase and
distribution of the Debt Securities by the Underwriters, no consent, approval,
authorization or order of, or filing, registration or qualification of or with,
any such court or governmental agency or body is required for the execution,
delivery and performance of this Agreement or the Indenture by the Company and
the consummation by the Company of the transactions contemplated hereby and
thereby, in each case other than such consents, approvals, authorizations,
registrations or qualifications which would not have a Material Adverse Effect;
(j) Neither the Company nor any of its Significant Subsidiaries
has sustained, since the date of the latest 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 in any such case, which would have a Material Adverse Effect,
otherwise than as set forth or contemplated in the Prospectus; and, since such
date, there has not been a material adverse change, in or affecting the general
financial condition or results of operations or business of the Company and its
Significant Subsidiaries, taken as a whole (a "MATERIAL ADVERSE CHANGE"),
otherwise than as set forth or contemplated in the Prospectus;
6
(k) Coopers & Xxxxxxx L.L.P., which has certified certain
financial statements of the Company, which statements appear in the Prospectus
or are incorporated by reference therein, is an independent public accountant as
required by the Securities Act and the Rules and Regulations;
(l) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or included or
incorporated by reference in the Prospectus present fairly in all material
respects the financial condition and results of operations of the Company and
its consolidated subsidiaries at the dates and for the periods indicated, and
have been prepared in conformity with United States generally accepted
accounting principles applied on a consistent basis throughout the periods
involved, except as otherwise expressly set forth therein;
(m) Except as described in the Registration Statement,
Prospectus or in documents incorporated therein by reference, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any material property or assets of the
Company or any of its Significant Subsidiaries is the subject which is required
to be disclosed in the Registration Statement, Prospectus or in documents
incorporated therein by reference or which would reasonably be expected to have
a Material Adverse Effect; and to the Company's knowledge, no such proceedings
are threatened by governmental authorities or by others;
(n) Neither the Company nor any of its Significant Subsidiaries
is in default in any material respect, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained in any
material indenture, mortgage, deed of trust, loan agreement or other agreement
to which the Company or any of its Significant Subsidiaries is a party or by
which it or any of them is or may be bound or to which any of the properties or
assets of the Company or any of its Significant Subsidiaries is subject, except
for such default which would not have a Material Adverse Effect; and
7
(o) Any certificate signed by any officer of the Company and
delivered to the Underwriters or to counsel for the Underwriters pursuant to
this Agreement will be deemed a representation and warranty by the Company to
each Underwriter as to the matters covered thereby.
2. PURCHASE OF THE DEBT SECURITIES BY THE UNDERWRITERS. On the basis
of the representations and warranties contained herein, and subject to the terms
and conditions set forth herein, the Company agrees to sell to the Underwriters,
and each of the Underwriters, severally and not jointly, agrees to purchase from
the Company, at the price and/or principal amount, as the case may be, set forth
in the Terms Agreement attached hereto as Annex I, together with interest
thereon accrued from the date specified in the Terms Agreement and in the
respective amounts of the designated Debt Securities set forth opposite the name
of each such Underwriter in Schedule I to Annex I to such Terms Agreement.
If so provided in Annex I hereto, the Underwriters are authorized to
solicit offers to purchase Debt Securities (the "CONTRACT SECURITIES") from the
Company pursuant to delayed delivery contracts ("DELAYED DELIVERY CONTRACTS"),
substantially in the form of Annex II hereto but with such changes therein as
the Company authorizes or approves. The Underwriters will endeavor to make such
arrangements and, as compensation therefor, the Company will pay to the
Underwriters, on the Closing Date, the percentage set forth in Annex I hereto of
the principal amount of the Debt Securities for which Delayed Delivery Contracts
are made. Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. The Company
will enter into Delayed Delivery Contracts in all cases where sales of contract
securities arranged by the Underwriters have been approved by the Company but,
except as the Company may otherwise agree, each such Delayed Delivery Contract
must be for not less than the minimum principal amount set forth in Annex I
hereto and the aggregate principal amount of Contract Securities may not exceed
the maximum aggregate principal amount set forth in Annex I hereto. The
Underwriters will not have any responsibility in respect of the validity or
performance of Delayed Delivery Contracts. The
8
principal amount of Debt Securities to be purchased by each Underwriter as set
forth in Annex I hereto will be reduced by an amount which will bear the same
proportion to the total principal amount of Contract Securities as the principal
amount of Debt Securities set forth opposite the name of such Underwriter except
to the extent that you determine that such reduction will be otherwise than in
such proportion and so advise the Company in writing; PROVIDED, HOWEVER, that
the total principal amount of Debt Securities to be purchased by all
Underwriters will be the aggregate principal amount set forth in Annex I hereto
less the aggregate principal amount of Contract Securities. Underwritten
Securities which are subject to Delayed Delivery Contracts are herein sometimes
called "DELAYED DELIVERY UNDERWRITTEN SECURITIES" and Underwritten Securities
which are not subject to Delayed Delivery Contracts are herein sometimes called
"IMMEDIATE DELIVERY UNDERWRITTEN SECURITIES."
3. OFFERING OF THE DEBT SECURITIES BY THE UNDERWRITERS. The
Underwriters propose to offer the Debt Securities for sale upon the terms and
conditions set forth in the Prospectus and any amendment or supplement thereto
relating to the Debt Securities.
4. DELIVERY OF AND PAYMENT FOR THE DEBT SECURITIES. Delivery of and
payment for the Debt Securities will be made at such location as may be agreed
upon by the Underwriters and the Company at 10:00 a.m., New York City time, on
the third Business Day following the date of this Agreement, or at such other
time and date as will be agreed upon (each such date and time of payment and
delivery being herein called the "CLOSING DATE") in the manner set forth in the
applicable Terms Agreement. Time will be of the essence, and delivery at the
time and place specified pursuant to this Agreement is a further condition of
the obligation of each Underwriter hereunder. Upon delivery, the Debt Securities
will be registered in such names and in such denominations as the Underwriters
will request in writing not less than two Business Days prior to the Closing
Date. For the purpose of expediting the checking and packaging of the
certificates for the Debt Securities, the Company will make the certificates
representing the Debt Securities available for inspection by the Underwriters in
New York, New York, not later than 2:00 p.m., New York City time, on the
Business Day prior to the Closing Date.
9
The Debt Securities of a series may be issued in whole or in part in
the form of one or more global securities in book-entry form that will be
deposited with, or on behalf of, a depository or its nominee, identified in the
Prospectus Supplement relating to such series. In such a case, the manner of
delivery of such global securities will be set forth in the applicable Terms
Agreement.
5. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees:
(a) (i) to prepare the Prospectus setting forth the terms of the
Debt Securities and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission's close of business on the second
Business Day following the execution and delivery of this Agreement; (ii) to
make no further amendment or supplement to the Registration Statement or to the
Prospectus prior to the applicable Closing Date, unless, if reasonably
practicable, the Underwriters or their representatives have had a reasonable
opportunity to review and comment upon such amendment or supplement prior to its
filing; (iii) to advise the Underwriters promptly of any such amendment or
supplement and to furnish the Underwriters with a copy thereof; (iv) 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 Debt Securities; (v) during the same period, to advise
the Underwriters, promptly after it receives notice thereof, of (A) the issuance
by the Commission of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus, (B) the suspension of the
qualification of the Debt Securities for offering or sale in any jurisdiction or
the initiation or threatening of any proceeding for any such purpose or (C) any
request by the Commission for the amending or supplementing of the Registration
Statement or the 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 the Prospectus or suspending any such
10
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) to furnish promptly to the Underwriters and to counsel for
the Underwriters a copy of the Registration Statement as originally filed with
the Commission, and each amendment thereto filed with the Commission, including
all consents and exhibits (other than those incorporated by reference) filed
therewith;
(c) to deliver promptly to the Underwriters such number of the
following documents as the Underwriters will reasonably request: (i) conformed
copies of the Registration Statement as originally filed with the Commission and
each amendment thereto (in each case excluding exhibits other than this
Agreement, the Indenture and such other exhibits as the Underwriters may
reasonably request); (ii) each Preliminary Prospectus, the Prospectus and any
amended or supplemented Prospectus; and (iii) any document incorporated by
reference in the Prospectus (excluding exhibits thereto); and, if the delivery
of a prospectus is required at any time after the Effective Date in connection
with the offering or sale of the Debt Securities, and if at such time any events
will have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it will be necessary
to amend or supplement the Prospectus (or to file under the Exchange Act any
document incorporated by reference in the Prospectus) to comply with the
Securities Act or the Exchange Act, to notify the Underwriters and, upon the
reasonable request of the Underwriters, to file such document and to prepare and
furnish without charge to each Underwriter as many copies as the Underwriters
may from time to time reasonably request of an amended or supplemented
Prospectus which will correct such statement or omission or effect such
compliance;
(d) to file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the judgment of the Company, be required by the Securities Act or
requested by the Commission;
11
(e) prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus and, promptly after
filing with the Commission any document incorporated by reference in the
Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations,
to furnish a copy thereof to the Underwriters;
(f) as soon as practicable after the date of this Agreement and
every Terms Agreement relating to designated Debt Securities, to make generally
available to its Holders an earnings statement of the Company and its
Significant Subsidiaries (which need not be audited) complying with Section
11(a) of the Securities Act and the Rules and Regulations (including, at the
option of the Company, Rule 158);
(g) promptly from time to time, to use all reasonable efforts to
take such action as the Underwriters may reasonably request to qualify the Debt
Securities for offering and sale under the securities laws of such jurisdictions
as the Underwriters may reasonably request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such jurisdictions for
so long as may be necessary to complete the distribution of the Debt Securities;
PROVIDED, HOWEVER, that in connection therewith, the Company will not be
required to qualify as a foreign corporation, to file a general consent to
service of process in any jurisdiction where it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject;
(h) if, and to the extent specified in the Terms Agreement
attached hereto as Annex I, designated Debt Securities are to be duly authorized
for listing on a national securities exchange, to apply for any listing of such
designated Debt Securities on such national securities exchange and to use its
best efforts to complete that listing, subject only to official notice of
issuance, prior to the relevant Closing Date;
(i) to apply the net proceeds from the sale of the Debt
Securities being sold by the Company as set forth in the Prospectus; and
12
(j) during the period beginning from the date of the Terms
Agreement and continuing to and including the Business Day after the Closing
Date with respect to such Terms Agreement, the Company will not offer, sell,
contract to sell or otherwise dispose of any debt securities which are
substantially similar to the Debt Securities designated for offer and sale,
without the prior written consent of the Underwriters, which consent will not be
unreasonably withheld.
6. EXPENSES. The Company agrees to pay all costs, expenses and fees
incident to (i) the preparation, printing, filing and distribution under the
Securities Act of the Registration Statement (including financial statements and
exhibits), each Preliminary Prospectus and all amendments and supplements
thereto; (ii) the printing and delivery of the Prospectus and all amendments or
supplements thereto; (iii) the printing and delivery of this Agreement, the Blue
Sky Memorandum and all other agreements, memoranda, correspondence and other
documents printed and delivered in connection with the offering of the Debt
Securities; (iv) the registration or qualification of the Debt Securities for
offer and sale under the securities or Blue Sky laws of the several states
(including in each case the reasonable fees and disbursements of counsel for the
Underwriters relating to such registration or qualification and memoranda
relating thereto); (v) filings and clearance with the National Association of
Securities Dealers, Inc. ("NASD"), in connection with the offering, if
applicable; and (vi) furnishing such copies of the Registration Statement, the
Prospectus and all amendments and supplements thereto as may be reasonably
requested for use in connection with the offering or sale of the Debt Securities
by the Underwriters; it is understood, however, that, except as provided in this
Section 6 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 Debt Securities by them, and any advertising expenses
connected with any offers they may make.
7. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters to purchase and pay for any Debt Securities are subject to the
accuracy in all material respects, when made, and on each Closing Date, of the
representations and warranties of the Compa-
13
ny contained herein, to the performance by the Company of its obligations
hereunder and under the Terms Agreement attached hereto as Annex I, and to each
of the following additional terms and conditions:
(a) At the applicable Closing Date, the Prospectus will have
been timely filed with the Commission in accordance with Section 5(a) hereof; no
stop order suspending the effectiveness of the Registration Statement or any
part thereof will have been issued, and no proceeding for that purpose will have
been initiated or threatened by the Commission; any request of the Commission
for inclusion of additional information in the Registration Statement or the
Prospectus or otherwise will have been complied with to the Underwriters'
reasonable satisfaction;
(b) Xxxxxxx X. Xxxxxxx, Vice President and Secretary of the
Company, will have furnished to the Underwriters his opinion, addressed to the
Underwriters and dated the Closing Date, in form and substance reasonably
satisfactory to counsel for the Underwriters to the effect that:
(i) The Company's Significant Subsidiaries have been duly
incorporated and are validly existing as corporations in good standing (or
the equivalent) under the laws of their respective jurisdictions of
incorporation; are duly qualified to do business and are in good standing
as foreign corporations in each jurisdiction in which their ownership or
lease of property or the conduct of their businesses requires such
qualification and where the failure to be so qualified and in good standing
would have a Material Adverse Effect; where so qualified, each Significant
Subsidiary has all corporate power and authority necessary to own, lease or
operate its properties and to conduct business;
(ii) to such counsel's knowledge, there are no contracts or
other documents which are required to be described in the Prospectus or
filed as exhibits to the Registration Statement by the Securities Act or by
the Rules and Regulations which have not been de-
14
scribed in the Prospectus or filed as exhibits to the Registration
Statement or incorporated therein by reference under the Rules and
Regulations;
(iii) the documents incorporated by reference in the
Prospectus (other than the financial statements and related schedules
therein and all other financial and statistical data included or
incorporated by reference therein or omitted therefrom, as to which such
counsel need express no opinion), when they were filed with the Commission
complied as to form in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder;
(iv) to such counsel's knowledge, and other than as set
forth in the Registration Statement, the Prospectus or any documents
incorporated by reference, there are no legal or governmental proceedings
pending to which the Company or any of its Significant Subsidiaries is a
party or of which any material property or assets of the Company or any of
its Significant Subsidiaries is the subject which, if determined adversely
to the Company or any of its Significant Subsidiaries, would have a
Material Adverse Effect; and to such counsel's knowledge, no such
proceedings are threatened; and
(v) the issuance and sale of the Debt Securities being
delivered on the Closing Date by the Company and the compliance by the
Company with all of the provisions of this Agreement and the Indenture, and
the consummation of the transactions contemplated hereby and thereby, 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 known to such counsel to which
the Company or any of its
15
Significant Subsidiaries is a party or by which any of them is bound or to
which any of the property or assets of the Company or any of its
Significant Subsidiaries is subject, except for such conflicts, breaches,
violations or defaults which would not have a Material Adverse Effect, nor
will such actions result in any violation of the provisions of any state or
federal statute or any order, rule or regulation known to such counsel of
any court or governmental agency or body having jurisdiction over the
Company or any of its Significant Subsidiaries or any of their material
properties or assets, except for such violations as would not have a
Material Adverse Effect; PROVIDED, that the foregoing opinion is limited to
those statutes, laws, rules and regulations of the United States of America
and the State of Minnesota, in each case, which, in such counsel's opinion,
are normally applicable to transactions of the type contemplated by this
Agreement; and PROVIDED, FURTHER, that no opinion need be given with
respect to the Securities Act, the Exchange Act, the Trust Indenture Act,
the Rules and Regulations, any order, rule or regulation made or
established by any regulatory authority or the National Association of
Securities Dealers, or state, securities or Blue Sky laws in connection
with the Underwriters' purchase and distribution of the Debt Securities;
(c) Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois), counsel to
the Company, will have furnished to the Underwriters its opinion, as counsel to
the Company, addressed to the Underwriters and dated the Closing Date, in form
and substance reasonably satisfactory to counsel for the Underwriters, to the
effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation and in good standing under the laws of Delaware
and has all corporate power and corporate authority necessary to execute,
deliver and perform all of its obligations under this Agreement, any
Delayed Delivery Contracts, the Indenture and the Debt Securities;
(ii) with respect to each of the Debt Securities, when (A)
the Registration
16
Statement, as finally amended (including all necessary post-effective
amendments), becomes effective; (B) an appropriate Prospectus Supplement
with respect to the Debt Securities has been prepared, delivered and filed
in compliance with the Act and the applicable rules and regulations
thereunder; (C) the Underwriting Agreement with respect to the Debt
Securities is duly executed and delivered by the Company and the other
parties thereto; (D) the directors and appropriate officers of the Company
have taken all necessary corporate action to approve the issuance and terms
of the Debt Securities and related matters; (E) the proposed Indenture
pursuant to which the Debt Securities are to be issued shall have been
qualified under the Trust Indenture Act, and duly executed and delivered by
the Company and the trustee under such Indenture; and (F) the Debt
Securities have been duly executed and authenticated in accordance with the
provisions of such Indenture and duly delivered to and paid for by the
Underwriters pursuant to this Agreement, in the case of Underwritten
Securities, or by the purchasers thereof pursuant to Delayed Delivery
Contracts, in the case of any Contract Securities, upon payment of the
agreed-upon consideration therefor, the Debt Securities, when issued and
sold in accordance with such Indenture and any related supplement thereto
and this Underwriting Agreement, will be valid and binding obligations of
the Company, enforceable against the Company, in accordance with their
respective terms, except that such enforcement may be subject to or limited
by (1) bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally;
(2) general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law); (3) public policy
considerations which may limit the rights of parties to obtain certain
remedies; (4) requirements that a claim with respect to any securities
denominated other than in United States dollars (or a judgment denominated
other than in United States dollars
17
in respect of such claim) be converted into United States dollars at a rate
of exchange prevailing on a date determined pursuant to applicable law; and
(5) governmental authority to limit, delay or prohibit the making of
payments outside the United States or in foreign currency or composition
currency;
(iii) the Indenture has been duly authorized by the
Company, and when duly executed by the proper officers of the Company
(assuming due execution and delivery by the Trustee) and delivered by the
Company, will constitute a valid and legally binding obligation of the
Company enforceable against the Company in accordance with its terms,
except to the extent that enforcement thereof may be limited by (A)
bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (B) general principles of equity
(regardless of whether such enforceability is considered in a proceeding at
law or in equity); and the Indenture conforms in all material respects to
the description thereof contained in the Prospectus;
(iv) (this Agreement and any Delayed Delivery Contract
should have been duly authorized, executed and delivered by the Company;
(vi) the Registration Statement has become effective under
the Securities Act, and the Indenture has been qualified under the Trust
Indenture Act, and no stop order suspending the effectiveness of the
Registration Statement has been issued and, to the knowledge of such
counsel, no proceeding for that purpose is pending or threatened by the
Commission;
(vi) the statements contained in the Prospectus under
"Description of Debt Securities" insofar as they describe federal statutes,
rules and regulations, or portions there-
18
of, constitute accurate descriptions thereof in all material respects;
(vii) the Registration Statement, as of the Effective
Date, and the Prospectus, as of the date it was filed with the Commission,
and any further amendments or supplements thereto made by the Company prior
to the applicable Closing Date (in each case other than the financial
statements and related schedules therein and all other financial and
statistical data included or incorporated by reference therein or omitted
therefrom and other than the Form T-1, as to which such counsel need
express no opinion) appear on their face to comply as to form in all
material respects with the requirements of the Securities Act and the Rules
and Regulations; and the Indenture conforms in all material respects to the
requirements of the Trust Indenture Act and the applicable rules and
regulations thereunder; and
(viii) the execution and delivery by the Company of each
of the Indenture, the Debt Securities, this Agreement or any Delayed
Delivery Contracts and the performance by the Company of its obligations
under each of the Indenture, the Debt Securities, this Agreement or any
Delayed Delivery Contracts, each in accordance with its terms, do not (A)
conflict with the Restated Certificate of Incorporation or by-laws of the
Company; (B) constitute a violation of or a default under the provisions of
any state or federal statute or any order, rule or regulation known to such
counsel of any state or federal court or governmental agency or body having
jurisdiction over the Company except for such violations as would not have
a Material Adverse Effect; and, except for the registration of the Debt
Securities under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications (1) as may be required
under the Securities Act, Exchange Act, the Rules and Regulations, the
Trust Indenture Act, any order, rule or regulation made or established by
any regulatory authority or the NASD and applicable state
19
securities or Blue Sky laws in connection with the purchase and
distribution of the Debt Securities by the Underwriters and (2) whose
absence both individually or in the aggregate would not have a Material
Adverse Effect and would not have a Material Adverse Effect on the sale of
the designated Debt Securities, no consent, approval, authorization or
order of, or filing or registration with, any such court or governmental
agency or body is required for the execution, delivery and performance of
this Agreement and the Indenture by the Company and the consummation by the
Company of the transactions contemplated hereby and thereby; PROVIDED that
the foregoing opinion is limited to those consents, approvals,
authorizations, orders, registrations and qualifications under laws which,
in the counsel's experience, are normally applicable to transactions of the
type contemplated by this Agreement.
In rendering the opinions required by subsections (b) and (c) of
this Section 7, Xxxxxxx X. Xxxxxxx and Skadden, Arps, Slate, Xxxxxxx & Xxxx
(Illinois), respectively, may (i) state that their opinion is limited to
matters governed by the federal laws of the United States of America, the
laws of the State of New York or the General Corporation Law of the State of
Delaware and (ii) rely (to the extent such counsel deems proper and specifies
in its opinion) as to matters involving the application of laws covered by
supporting opinion upon the opinion of other counsel of good standing,
PROVIDED that such other counsel is reasonably satisfactory to counsel for
the Underwriters and furnishes a copy of its opinion to the Underwriters.
Such counsel may also state that, insofar as such opinion involves factual
matters, they have relied upon certificates of officers of the Company and
its Significant Subsidiaries and certificates of public officials. In
addition, Xxxxxxx X. Xxxxxxx, in rendering the opinions required by clauses
(i) and (ii) of subsection (b) with respect to the subsidiaries, may rely on
opinions rendered by counsel employed by such subsidiaries;
Each of Xxxxxxx X. Xxxxxxx and Skadden, Arps, Slate, Xxxxxxx & Xxxx
(Illinois) will have furnished to the Underwriters written statements, addressed
to the
20
Underwriters and dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriters, to the effect that such counsel has acted as
counsel to the Company in connection with the preparation of the Registration
Statement, and, based on the foregoing, such counsel does not believe that the
Registration Statement (other than the financial statements and related
schedules and all other financial data included or incorporated by reference
therein or omitted therefrom, and other than the Form T-1, as to which such
counsel will express no opinion or belief), as of the Effective Date, contained
any 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 the Prospectus (other than the financial statements and
related schedules and all other financial and statistical data included or
incorporated by reference therein or omitted therefrom, and other than the Form
T-1, as to which such counsel will express no opinion or belief), as of its date
and the applicable Closing Date, contains any untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. Xxxxxxx X. Xxxxxxx will also have
furnished to the Underwriters a written statement, addressed to the Underwriters
and dated the Closing Date, in form and substance reasonably satisfactory to the
Underwriters, to the effect that he does not believe that any document
incorporated by reference in the Prospectus (other than the financial statements
and related schedules and all other financial and statistical data included or
incorporated by reference therein or omitted therefrom, and other than the Form
T-1, as to which such counsel will express no opinion or belief) contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading;
The foregoing opinions and statements may be qualified by statements
to the effect that (i) such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for the statements made in the
Prospectus under the captions relating to the designated Debt Securities,
insofar as
21
such statements relate to the Debt Securities and concern legal matters and (ii)
as to facts necessary to the determination of materiality, such counsel is
relying upon the opinions of officers and other representatives of the Company;
(d) The Underwriters will have received from counsel for the
Underwriters such opinion or opinions, dated the Closing Date, with respect to
the issuance and sale of the Debt Securities, the Registration Statement, the
Prospectus and other related matters as the Underwriters may reasonably require;
(e) At the Closing Date, counsel for the Underwriters will have
been furnished with such documents, certificates and information as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Debt Securities as contemplated herein and in each Terms
Agreement and related proceedings, or to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein and therein contained;
(f) At the time of execution of this Agreement and each Terms
Agreement, the Underwriters will have received from Coopers & Xxxxxxx L.L.P.
with respect to the Company letters, in form and substance reasonably
satisfactory to the Underwriters, addressed to the Underwriters and dated the
date hereof and thereof (i) confirming that they are independent public
accountants with respect to the Company and its Significant Subsidiaries within
the meaning of the Securities Act and (ii) stating, as of the date hereof and
thereof (or with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the
Prospectus, as of a date not more than five Business Days prior to the date
hereof or thereof), the conclusions and findings of such firm with respect to
the financial information and other matters as provided in SAS No. 72;
(g) With respect to the letters of Coopers & Xxxxxxx L.L.P.
referred to in the preceding paragraph and delivered to the Underwriters
concurrently with the execution of this Agreement (the "INITIAL LETTER") and
each Terms Agreement, the Company will have furnished to the Underwriters
letters (the "BRING-DOWN LETTERS") of
22
such accountants, addressed to the Underwriters and dated the Closing Date (i)
confirming that they are independent public accountants within the meaning of
the Securities Act and the Rules and Regulations, (ii) stating, as of the date
of the bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than five Business
Days prior to the date of the bring-down letter), the conclusions and findings
of such firm with respect to the financial information and other matters covered
by the initial letter and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letter;
(h) At each Closing Date, the Company will have furnished to the
Underwriters a certificate, dated the Closing Date, of its officers, reasonably
satisfactory to the Underwriters as to the accuracy of the representations and
warranties of the Company herein at and as of such Closing Date, as to the
performance by the Company of all of its obligations hereunder to be performed
at or prior to such Closing Date, as to the matters set forth in subsections (a)
and (i) of this Section 7 and as to such other matters as the Representatives
may reasonably request;
(i) neither the Company nor any of its Significant Subsidiaries
will have sustained since the respective dates as of which information is given
in the Registration Statement or the Prospectus or in any document incorporated
by reference therein any Material Adverse Change, other than as set forth or
contemplated or incorporated by reference in the Prospectus or in any of the
documents incorporated by reference therein, the effect of which is, in the
reasonable judgment of the Underwriters, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Debt Securities being delivered on such Closing Date on the terms and in
the manner contemplated in the Prospectus;
(j) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, (i) no downgrading will have occurred in the
rating accorded the Company's securities by any "nationally recognized
statistical rating organization," as that term
23
is defined by the Commission for purposes of Rule 436(g)(2) of the Rules and
Regulations and (ii) no such organization will have publicly announced that it
has under surveillance or review, with possible negative implications, its
rating of any of the Company's securities the effect of which, in any such case
described in clause (i) or (ii), is in the counsel's judgment (after
consultation with the Company) so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the designated Debt Securities on the terms and in the manner contemplated in
the Prospectus; and
(k) Subsequent to the execution and delivery of this Agreement,
none of the following will have occurred (i) a suspension or material limitation
in trading in securities generally on the New York Stock Exchange, (ii) a
general moratorium on commercial banking activities in New York declared by
either federal or New York State authorities, or (iii) the material outbreak or
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any such event
specified in this clause (iii) in the judgment of the Underwriters made it
impracticable or inadvisable to proceed with the public offering or the delivery
of the designated Debt Securities on the terms and in the manner contemplated by
the Prospectus.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement will be deemed to be in compliance with the
provisions hereof only if they are in substance reasonably satisfactory to
counsel for the Underwriters. The Company may rely on any waiver of such
conditions given by the Underwriters or counsel to the Underwriters as if given
by the Underwriters.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages, liabilities and judgments
caused by any untrue statement or alleged untrue statement of a material fact
24
contained in the Registration Statement or the Prospectus (as amended or
supplemented if the Company will have furnished any amendments or supplements
thereto) or any Preliminary Prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriters furnished in writing to the Company by
or on behalf of any Underwriter expressly for use therein, and except further
that the Company will not be liable with respect to any losses, claims, damages,
liabilities or judgments arising out of or based on any untrue statements or
alleged untrue statement or omission or alleged omission to state a material
fact in any Preliminary Prospectus which is corrected in the Prospectus if the
person or entity asserting such loss, claim, damage, liability or judgment
purchased Debt Securities from such Underwriter, but was not sent or given a
copy of the Prospectus at or prior to the written confirmation of the sale of
such Debt Securities to such person or entity in any case where such delivery is
required by the Securities Act if the Company has previously furnished copies
thereof in sufficient quantity to such Underwriter and the loss, claim, damage,
liability or judgment of such Underwriter results from an untrue statement or
omission of a material fact contained in the Preliminary Prospectus.
(b) In case any action will be brought against any Underwriter
or any person controlling such Underwriter, based upon any Preliminary
Prospectus, the Registration Statement or the Prospectus or any amendment or
supplement thereto and with respect to which indemnity may be sought against the
Company, such Underwriter will promptly notify the Company in writing, and the
Company will assume the defense thereof, including the employment of counsel
reasonably satisfactory to such indemnified party and payments of all fees and
expenses. Any Underwriter or any such controlling person will have the right to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel will be at the expense of
such Underwriter or such controlling person unless (i) the employment of such
counsel has been specifically authorized in
25
writing by the Company, (ii) the Company has failed to assume the defense and
employ counsel or (iii) the named parties to any such action (including any
impleaded parties) include both such Underwriter or such controlling person and
the Company and such Underwriter or such controlling person have been advised by
such counsel that there may be one or more legal defenses available to it which
are different from or additional to those available to the Company (in which
case the Company will not have the right to assume the defense of such action on
behalf of such Underwriter or such controlling person). The Company will not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) for all such
Underwriters and controlling persons, which firm will be designated in writing
by the representatives and that all such fees and expenses will be reimbursed as
they are incurred. The Company will not be liable for any settlement of any such
action effected without its written consent, but, if settled with the written
consent of the Company, the Company agrees to indemnify and hold harmless any
Underwriters and any such controlling person from and against any loss or
liability by reason of such settlement. Notwithstanding the immediately
preceding sentence, if in any case where the fees and expenses of counsel are at
the expense of the indemnifying party and an indemnified party will have
requested the indemnifying party to reimburse the indemnified party for such
fees and expenses of counsel as incurred, such indemnifying party agrees that it
will be liable for any settlement of any action effected without its written
consent if (i) such settlement is entered into more than thirty Business Days
after the receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party has failed to reimburse the indemnified party in
accordance with such request for reimbursement prior to the date of such
settlement. No indemnifying party will, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified
26
party from all liability on claims that are the subject matter of such
proceeding.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement, and any person controlling the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
to the same extent as the foregoing indemnity from the Company to each
Underwriter but only with reference to information relating to such Underwriter
furnished in writing by or on behalf of such Underwriter expressly for use in
the Registration Statement, the Prospectus or any Preliminary Prospectus. In
case any action will be brought against the Company, any of its directors, any
such officer or any person controlling the Company based on the Registration
Statement, the Prospectus or any Preliminary Prospectus and in respect of which
indemnity may be sought against any Underwriter, the Underwriter will have the
rights and duties given to the Company (except that if the Company will have
assumed the defense thereof, such Underwriter will not be required to do so, but
may employ separate counsel therein and participate in the defense thereof but
the fees and expenses of such counsel will be at the expense of such
Underwriter), and the Company, its directors, any such officers and any person
controlling the Company will have the rights and duties given to the Underwriter
by Section 8(b) hereof.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, will contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits actually received by the Company on the one hand
and the Underwriters on the other hand from the offering of the Debt Securities
to which such loss, claim, damage, liability or judgment relates or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the
27
Underwriters in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Underwriters will be deemed to be in the same proportion as the total
net proceeds from the offering (before deducting expenses) received by the
Company and the total underwriting discounts and commissions received by the
Underwriters bear to the total price to the public of the Debt Securities, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault of the Company and the Underwriters will 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 or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. With respect to any such
Underwriter, such relative fault will also be determined by reference to the
extent (if any) to which such losses, claims, damages or liabilities (or actions
in respect thereof) with respect to any Preliminary Prospectus result from the
fact that such Underwriter sold Debt Securities to a person to whom there was
not sent or given, at or prior to the written confirmation of such sale, a copy
of the Prospectus, if the Company had previously furnished copies thereof to
such Underwriter.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8(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 in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph will be deemed to include, subject to the limitations set
forth above, 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 Section 8, no Underwriter will be
required to contribute any amount in excess of the amount by which the total
price at which the Debt Securities underwritten by it and distributed to
28
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
Securities Act) will be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 8(d) are several in proportion to the
respective principal amount of Debt Securities purchased by each of the
Underwriters hereunder and not joint.
(e) The obligations of the Company under this Section 8 will be
in addition to any liability which the Company may otherwise have and will
extend upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Securities Act; and the obligations of
the Underwriters under this Section 8 will be in addition to any liability which
the respective Underwriters may otherwise have and will extend, upon the same
terms and conditions, to each officer and director of the Company (including any
person who, with his consent, is named in the Registration Statement as about to
become a director of the Company) and to each person, if any, who controls the
Company within the meaning of the Securities Act.
9. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of
the Underwriters participating in an offering of Debt Securities fails at the
applicable Closing Date to purchase the Underwritten Securities which it or they
are obligated to purchase under the applicable Terms Agreement (the "DEFAULTED
SECURITIES"), then the Representative will have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representative has not completed such
arrangements within such 24-hour period, then:
(a) if the aggregate amount of Defaulted Securities does not
exceed 10% of the aggregate amount of the Underwritten Securities to be
purchased pursuant to the Terms Agreement, the non-defaulting Underwriters
29
named in such Terms Agreement will be obligated to purchase the full amount
thereof in the proportions that their respective underwriting obligations
thereunder bear to the underwriting obligations of all such non-defaulting
Underwriters; or
(b) if the aggregate amount of Defaulted Securities exceeds 10%
of the aggregate amount of the Underwritten Securities to be purchased pursuant
to such Terms Agreement, the Terms Agreement will terminate without any
liability on the part of any non-defaulting Underwriters.
No action taken pursuant to this Section 9 will relieve any defaulting
Underwriter from liability in respect of its default.
In the event of a default by any Underwriter or Underwriters as set
forth in this Section 9, either the Representative or the Company will have the
right to postpone the applicable Closing Date for a period not exceeding seven
full business days to effect any required changes in the Registration Statement
or Prospectus or in any other documents or arrangements.
10. TERMINATION. Except as provided in the applicable Prospectus
Supplement, the obligations of the Underwriters hereunder may be terminated by
the Underwriters which have agreed to purchase in the aggregate 50% or more of
the aggregate principal amount of Debt Securities by notice given to and
received by the Company prior to delivery of and payment for the Debt Securities
if, prior to that time, any of the events described in Sections 7(i),(j) and (k)
will have occurred or if the Underwriters will decline to purchase the Debt
Securities as permitted by Section 9.
11. EFFECT OF TERMINATION OF PRICING AGREEMENT OR NONDELIVERY OF
SECURITIES. If the Company fails to tender the Immediate Delivery Underwritten
Securities for delivery to the Underwriters, or if the Underwriters decline to
purchase the Immediate Delivery Underwritten Securities for any reason permitted
under this Agreement, the Company will reimburse the Underwriters for the
reasonable fees and expenses of their counsel and for such other out-of-pocket
expenses that they incurred in connection with this Agreement, the proposed
purchase of
30
Immediate Delivery Underwritten Securities and the solicitation of any purchases
of the Delayed Delivery Underwritten Securities, and upon demand, the Company
will pay the full amount hereof to the Representatives. If this Agreement is
terminated pursuant to Section 9 hereof by reason of the default of one or more
Underwriters, the Company will not be obligated to reimburse the several
Underwriters on account of those expenses.
12. NOTICES, ETC. All statements, requests, notices and agreements
hereunder will be in writing, and:
(a) if to the Underwriters, will be delivered or sent by mail,
telex or facsimile transmission as will be directed in the Terms Agreement
attached hereto as Annex I; and
(b) if to the Company, will be delivered or sent by mail, telex
or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: General Counsel (Facsimile: (000) 000-0000).
Any such statements, requests, notices or agreements will take effect at the
time of receipt thereof. The Company will be entitled to act and rely upon any
request, consent, notice or agreement given or made on behalf of the
Underwriters by the lead Underwriter.
13. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement will
inure to the benefit of and be binding upon the Underwriters, the Company, their
respective successors and the controlling persons and officers defined in
Section 8. This Agreement and the terms and provisions hereof are for the sole
benefit of only those persons. Nothing in this Agreement is intended or will be
construed to give any person other than the persons referred to in this Section
13, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein. No purchaser of the Debt
Securities from any Underwriter will be deemed a successor or assign by reason
merely of such purchase.
14. SURVIVAL. The respective indemnities, representations, warranties
and agreements of the Company and the Underwriters contained in this Agreement
or made by or on behalf of them, respectively, pursuant to this
31
Agreement, will survive the delivery of and payment for any Debt Securities and
will remain in full force and effect, regardless of any investigation made by or
on behalf of any of them or any person controlling any of them.
15. DEFINITION OF THE TERM "BUSINESS DAY." For purposes of this
Agreement, "Business Day" means any day on which the New York Stock Exchange,
Inc., is open for trading.
16. GOVERNING LAW. This Agreement will be governed by and construed
in accordance with the laws of the State of New York without regard to the
conflict of laws principle thereof.
17. COUNTERPARTS. This Agreement may be executed in counterparts and,
if executed in more than one counterpart, the executed counterparts will each be
deemed to be an original but all such counterparts will together constitute one
and the same instrument.
18. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
32
If the foregoing correctly sets forth the agreement between the
Company and the Underwriters please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
ECOLAB INC.
By:
-----------------------------------------------
Name:
Title:
Confirmed and accepted as of the date first above written:
By [Representative]
By:
------------------------------
Acting severally on behalf
of themselves and the
several Underwriters
named in Exhibit A to
the Schedule hereto
33
ANNEX I
TO UNDERWRITING AGREEMENT
TERMS AGREEMENT
_________, 1996
[ ]
As representatives of the
several Underwriters
named in Schedule I hereto
c/o [ ]
Ladies and Gentlemen:
Ecolab Inc., a Delaware corporation (the "COMPANY"), proposes, subject
to the terms and conditions stated herein and in the Underwriting Agreement,
dated ____________, ____ (the "UNDERWRITING AGREEMENT"), between the Company, on
the one hand, and _________________ _________________ on the other hand, to
issue and sell to the Underwriters named in Schedule I hereto (the
"UNDERWRITERS") the Debt Securities specified in Schedule II hereto (the
"DESIGNATED SECURITIES"). Each of the provisions of the Underwriting Agreement
is incorporated herein by reference in its entirety, and will be deemed to be a
part of this Terms Agreement to the same extent as if such provisions had been
set forth in full herein. Each of the representations and warranties set forth
therein will be deemed to have been made at and as of the date of this Terms
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 1 of the Underwriting Agreement will be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined) and also a representation and
warranty as of the date of this Terms Agreement in relation to the Prospectus,
as amended or supplemented, relating to the Designated Securities which are the
subject of this Terms Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
will be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein de-
Annex-I-1
fined. The Representatives designated to act on behalf of the Representatives
and on behalf of each of the Underwriters of the Designated Securities pursuant
to Section ___ of the Underwriting Agreement and the address of the
Representatives referred to in such Section ___ are set forth at the end of
Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, 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 time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us [ ] counterparts hereof. Upon acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, will 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 or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of which
will be submitted to the Company for examination
Annex-I-2
upon request, but without warranty on the part of the Representatives as to the
authority of the signers thereof.
Very truly yours,
ECOLAB INC.
By:_______________________
Name:
Title:
Accepted as of the date hereof:
[ ]
On behalf of each of the Underwriters
By: _____________________
Name:
Title:
Annex-I-3
SCHEDULE I TO ANNEX I
Principal
Amount of
Designated
Securities to
Underwriters Be Purchased
------------ ---------------
-------------------------...............................
-------------------------...............................
-------------------------...............................
-------------------------...............................
[Names of Underwriters]
Total...........................
-----------------
$
-----------------
----------------
Sched-I-1
SCHEDULE II TO ANNEX I
UNDERWRITING AGREEMENT DATED ______________, ____
REGISTRATION STATEMENT NO. __________
TITLE, PURCHASE PRICE AND DESCRIPTION OF DESIGNATED SECURITIES:
Title:
Number or Aggregate Principal Amount: The aggregate principal amount of
Debt Securities to be purchased by the several Underwriters may be reduced by
the aggregate principal amount of Debt Securities sold pursuant to Delayed
Delivery Contracts.*
Price to Public:
Purchase Price by Underwriters (include accrued interest or amortization,
if any; exclude any Debt Securities sold pursuant to delayed delivery
contracts):
Sinking Fund Provisions:
Redemption Provisions:
Other Provisions:
APPLICABLE SECURITIES AGREEMENT:
MATURITY:
* To be added only if Delayed Delivery Contracts are contemplated.
Sched-II-1
INTEREST RATE:
INTEREST PAYMENT DATES:
TIME OF DELIVERY AND LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
UNDERWRITERS:
OTHER TERMS:
[THE UNDERWRITERS WILL PAY FOR THE DESIGNATED SECURITIES (LESS ANY DESIGNATED
SECURITIES SOLD PURSUANT TO DELAYED DELIVERY CONTRACTS) UPON DELIVERY THEREOF AT
THE OFFICES OF __________ AT 10:00 A.M. (NEW YORK TIME) ON __________, 199__, OR
AT SUCH OTHER TIME, NOT LATER THAN __.M. (NEW YORK TIME) OR __________, 199__,
AS WILL BE JOINTLY DESIGNATED BY THE REPRESENTATIVE AND THE COMPANY.]
The fee to be paid to the Underwriters in respect of the Debt Securities
purchased pursuant to Delayed Delivery Contracts arranged by the Underwriters
will be ___% of the purchase price of the Debt Securities so purchased.*
* To be added only if Delayed Delivery Contracts are contemplated.
Sched-II-2
ANNEX II
TO UNDERWRITING AGREEMENT
ECOLAB INC.
(a Delaware corporation)
[Title of Securities]
DELAYED DELIVERY CONTRACT
__________, 1996
Ecolab Inc.
Ecolab Center
000 X. Xxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Ecolab Inc., a Delaware
corporation (the "COMPANY"), and the Company agrees to sell to the undersigned
on _______ __, 199__ (the "DELIVERY DATE"), _______________________ of the
Company's [insert title of security] (the "SECURITIES"), offered by the
Company's Prospectus dated October __, 1996, as supplemented by its
Prospectus Supplement dated ____________, 199__, receipt of which is hereby
acknowledged, at a purchase price of _____________ to the Delivery Date, and on
the further terms and conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to
purchase on the Delivery Date will be made to the Company or its order by
certified or official bank check in New York Clearing House funds at the office
of ______________________________, on the Delivery Date, upon delivery to the
undersigned of the Securities to be purchased by the undersigned in definitive
form and in such denominations and registered in such names as the undersigned
may designate by written or telegraphic communication addressed to the Company
not less than five Business Days prior to the Delivery Date.
Annex-II-1
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date will be subject only to the conditions that
(i) the purchase of Securities to be made by the undersigned will not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (ii) the Company, on or before __________, 199__,
will have sold to the Underwriters of the Securities (the "UNDERWRITERS") such
amount of the Securities as is to be sold to them pursuant to the Terms
Agreement dated __________, 199__ between the Company and the Underwriters. The
obligation of the undersigned to take delivery of and make payment for
Securities will not be affected by the failure of any purchaser to take delivery
of and make payments for Securities pursuant to other contracts similar to this
contract. The undersigned represents and warrants to you that its investment in
the Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which govern such
investment.
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to
the Company that all necessary corporate action for the due execution and
delivery of this contract and the payment for and purchase of the Securities has
been taken by it, and no further authorization or approval of any governmental
or other regulatory authority is required for such execution, delivery, payment
or purchase, and that, upon acceptance hereof by the Company and mailing or
delivery of a copy as provided below, this contract will constitute a valid and
binding agreement of the undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
Annex-II-2
It is understood that the Company will not accept Delayed Delivery
Contracts for an amount of Securities in excess of __________ and that the
acceptance of any Delayed Delivery Contract is in the Company's sole discretion
and, without limiting the foregoing, need not be on a first-come, first-served
basis. If this contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance on a copy hereof and mail or deliver a
signed copy hereof to the undersigned at its address set forth below. This will
become a binding contract between the Company and the undersigned when such copy
is so mailed or delivered.
This Agreement will be governed by the laws of the State of New York.
Yours very truly,
PURCHASERS
------------------------------------
(Name)
By:
---------------------------------
(Title)
------------------------------------
------------------------------------
(Address)
Accepted as of the date first above written.
ECOLAB INC.
By:
-----------------------------------------
(Title)
Annex-II-3
PURCHASER--PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the Representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed are as
follows (please print):
Telephone No.
(including
Name Area Code)
----- --------------
Annex-II-4
