EXHIBIT 1.1
FORM OF UNDERWRITING AGREEMENT FOR SENIOR
DEBT SECURITIES AND SUBORDINATED DEBT SECURITIES
Witco Corporation
Debt Securities
Underwriting Agreement
New York, New York
To the Representatives named in Schedule I hereto of the Underwriters named in
Schedule II hereto
Dear Sirs:
Witco Corporation, a Delaware corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, the principal amount of its securities identified in Schedule I
hereto (the "Securities"), to be issued under an indenture (the "Indenture")
dated as of , 19 , between the Company and , as trustee (the "Trustee"). If the
firm or firms listed in Schedule II hereto include only the firm or firms listed
in Schedule I hereto, then the terms "Underwriters" and "Representatives", as
used herein, shall each be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Under-
writer as set forth below in this Section 1. Certain terms
used in this Section 1 are defined in paragraph (c) hereof.
(a) If the offering of the Securities is a
Delayed Offering (as specified in Schedule I hereto),
paragraph (i) below is applicable and, if the offering
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of the Securities is a Non-Delayed Offering (as so
specified), paragraph (ii) below is applicable.
(i) The Company meets the requirements for the use of
Form S-3 under the Securities Act of 1933 (the "Act") and has
filed with the Securities and Exchange Commission (the
"Commission") a registration statement (the file number of
which is set forth in Schedule I hereto) on such Form,
including a basic prospectus, for registration under the Act
of the offering and sale of the Securities. The Company may
have filed one or more amendments thereto, and may have used a
Preliminary Final Prospectus, each of which has previously
been furnished to you. Such registration statement, as so
amended, has become effective. The offering of the Securities
is a Delayed Offering and, although the Basic Prospectus may
not include all the information with respect to the Securities
and the offering thereof required by the Act and the rules
thereunder to be included in the Final Prospectus, the Basic
Prospectus includes all such information required by the Act
and the rules thereunder to be included therein as of the
Effective Date. The Company will next file with the Commission
pursuant to Rules 415 and 424(b)(2) or (5) a final supplement
to the form of prospectus included in such registration
statement relating to the Securities and the offering thereof.
As filed, such final prospectus supplement shall include all
required information with respect to the Securities and the
offering thereof and, except to the extent the Representatives
shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the
Basic Prospectus and any Preliminary Final Prospectus) as the
Company has advised you, prior to the Execution Time, will be
included or made therein.
(ii) The Company meets the requirements for the use
of Form S-3 under the Act and has filed with the Commission a
registration statement (the file number of which is set forth
in Schedule I
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hereto) on such Form, including a basic prospectus, for
registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more amendments
thereto, including a Preliminary Final Prospectus, each of
which has previously been furnished to you. The Company will
next file with the Commission either (A) a final prospectus
supplement relating to the Securities in accordance with Rules
430A and 424(b)(1) or (4), or (B) prior to the effectiveness
of such registration statement, an amendment to such
registration statement, including the form of final prospectus
supplement. In the case of clause (A), the Company has
included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A
Information) required by the Act and the rules thereunder to
be included in the Final Prospectus with respect to the
Securities and the offering thereof. As filed, such final
prospectus supplement or such amendment and form of final
prospectus supplement shall contain all Rule 430A Information,
together with all other such required information, with
respect to the Securities and the offering thereof and, except
to the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent
not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined in
Section 3 hereof), the Final Prospectus (and any supplement thereto)
will, comply in all material respects with the applicable requirements
of the Act, the Securities Exchange Act of 1934 (the "Exchange Act")
and the Trust Indenture Act of 1939 (the "Trust Indenture Act") and the
respective rules thereunder; on the Effective Date, the Registration
Statement did not or will not contain any untrue statement of a
material
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fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not misleading; on
the Effective Date and on the Closing Date the Indenture did or will
comply in all material respects with the requirements of the Trust
Indenture Act and the rules thereunder; and, on the Effective Date, the
Final Prospectus, if not filed pursuant to Rule 424(b), did not or will
not, and on the date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Final Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Company makes no
representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee
or (ii) the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing
to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "the Effective Date" shall mean
each date that the Registration Statement and any post-effective
amendment or amendments thereto became or become effective and each
date after the date hereof on which a document incorporated by
reference in the Registration Statement is filed. "Execution Time"
shall mean the date and time that this Agreement is executed and
delivered by the parties hereto. "Basic Prospectus" shall mean the
prospectus referred to in paragraph (a) above contained in the
Registration Statement at the Effective Date including, in the case of
a Non-Delayed Offering, any Preliminary Final Prospectus. "Preliminary
Final Prospectus" shall mean any preliminary prospectus supplement to
the Basic Prospectus which describes the Securities and the offering
thereof and is used prior to filing of the Final Prospectus. "Final
Prospectus" shall mean the prospectus supplement relating to the
Securities that is first filed pursuant to Rule 424(b)
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after the Execution Time, together with the Basic Prospectus or, if, in
the case of a Non-Delayed Offering, no filing pursuant to Rule 424(b)
is required, shall mean the form of final prospectus relating to the
Securities, including the Basic Prospectus, included in the
Registration Statement at the Effective Date. "Registration Statement"
shall mean the registration statement referred to in paragraph (a)
above, including incorporated documents, exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto becomes
effective prior to the Closing Date, shall also mean such registration
statement as so amended. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as
provided by Rule 430A. "Rule 415", "Rule 424", "Rule 430A" and
"Regulation S-K" refer to such rules or regulation under the Act. "Rule
430A Information" means information with respect to the Securities and
the offering thereof permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A. Any
reference herein to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the
Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the Effective Date of the Registration Statement or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be, deemed to be incorporated therein
by reference. A "Non-Delayed Offering" shall mean an offering of
securities which is intended to commence promptly after the effective
date of a registration statement, with the result that, pursuant to
Rules 415 and 430A, all information (other than Rule 430A Information)
with respect to the securities so offered must be included in such
registration
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statement at the effective date thereof. A "Delayed Offering" shall
mean an offering of securities pursuant to Rule 415 which does not
commence promptly after the effective date of a registration statement,
with the result that only information required pursuant to Rule 415
need be included in such registration statement at the effective date
thereof with respect to the securities so offered. Whether the offering
of the Securities is a Non-Delayed Offering or a Delayed Offering shall
be set forth in Schedule I hereto.
(d) The financial statements, and the related notes thereto,
included or incorporated by reference in the Registration Statement and
the Final Prospectus present fairly the consolidated financial position
of the Company and its consolidated subsidiaries as of the dates
indicated and the results of their operations and the changes in their
consolidated cash flows for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis, and the supporting
schedules included or incorporated by reference in the Registration
Statement and the Final Prospectus present fairly the information
required to be stated therein; and the pro forma financial information,
and the related notes thereto, included or incorporated by reference in
the Registration Statement and the Final Prospectus has been prepared
in accordance with the applicable requirements of the Act and the
Exchange Act, as applicable.
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
set forth in Schedule I hereto the principal amount of the Securities set forth
opposite such Underwriter's name in Schedule II hereto, except that, if Schedule
I hereto provides for the sale of Securities pursuant to delayed delivery
arrangements, the respective principal amounts of Securities to be purchased by
the Underwriters shall be as set forth in Schedule II hereto less the respective
amounts of Contract Securities determined as provided below. Securities to be
purchased by the Underwriters are herein sometimes called the "Underwriters'
Securities" and Securities to be purchased pursuant to Delayed Delivery
Contracts as hereinafter provided are herein called "Contract Securities".
If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Securities from the Company pursuant to
delayed delivery contracts ("Delayed Delivery Contracts"), substantially in the
form of Schedule III hereto but with such changes therein as the Company may
authorize or approve. The Underwriters will endeavor to make such arrangements
and, as compensation therefor, the Company will pay to the Representatives, for
the account of the Underwriters, on the Closing Date, the percentage set forth
in Schedule I hereto of the principal amount of the 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
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as the Company may otherwise agree, each such Delayed Delivery Contract must be
for not less than the minimum principal amount set forth in Schedule I hereto
and the aggregate principal amount of Contract Securities may not exceed the
maximum aggregate principal amount set forth in Schedule I hereto. The
Underwriters will not have any responsibility in respect of the validity or
performance of Delayed Delivery Contracts. The principal amount of Securities to
be purchased by each Underwriter as set forth in Schedule II hereto shall be
reduced by an amount which shall bear the same proportion to the total principal
amount of Contract Securities as the principal amount of Securities set forth
opposite the name of such Underwriter bears to the aggregate principal amount
set forth in Schedule II hereto, except to the extent that you determine that
such reduction shall be otherwise than in such proportion and so advise the
Company in writing; provided, however, that the total principal amount of
Securities to be purchased by all Underwriters shall be the aggregate principal
amount set forth in Schedule II hereto less the aggregate principal amount of
Contract Securities.
3. Delivery and Payment. Delivery of and payment for the
Underwriters' Securities shall be made on the date and at the time specified in
Schedule I hereto (or such later date not later than five business days after
such specified date as the Representatives shall designate), which date and time
may be postponed by agreement between the Representatives and the Company or as
provided in Section 8 hereof (such date and time of delivery and payment for the
Underwriters' Securities being herein called the "Closing Date"). Delivery of
the Underwriters' Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Company by certified or official bank check or checks
drawn on or by a New York Clearing House bank and payable in next day funds.
Delivery of the Underwriters' Securities shall be made at such location as the
Representatives shall reasonably designate at least one business day in advance
of the Closing Date and payment for the Securities shall be made at the office
specified in Schedule I hereto. Certificates for the Underwriters' Securities
shall be registered in such names and in such denominations as the
Representatives may request not less than three full business days in advance of
the Closing Date.
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The Company agrees to have the Underwriters' Securities
available for inspection, checking and packaging by the Representatives in New
York, New York, not later than 1:00 p.m. on the business day prior to the
Closing Date.
4. Agreements. The Company agrees with the
several Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereto, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus
unless the Company has furnished you a copy for your review prior to
filing and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, the
Company will cause the Final Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the Representatives of such
timely filing. The Company will promptly advise the Representatives (i)
when the Registration Statement, if not effective at the Execution
Time, and any amendment thereto, shall have become effective, (ii) when
the Final Prospectus, and any supplement thereto, shall have been filed
with the Commission pursuant to Rule 424(b), (iii) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (iv)
of any request by the Commission for any amendment of the Registration
Statement or supplement to the Final Prospectus or for any additional
information, (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (vi)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
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(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (i) prepare and
file with the Commission, subject to the second sentence of paragraph
(a) of this Section 4, an amendment or supplement which will correct
such statement or omission or effect such compliance and (ii) supply
any supplemented Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by
the Act, as many copies of any Preliminary Final Prospectus and the
Final Prospectus and any supplement thereto as the Representatives may
reasonably request.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Securities and
will arrange for the determination of the legality of the Securities
for purchase by institutional investors.
(f) During the period beginning from the
Execution Date and continuing to and including the
earlier of (i) the termination of trading restrictions
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for the Securities, as notified to the Company by the Representatives
and (ii) the Closing Date, the Company will not, without the consent of
the Representatives, offer, sell or contract to sell, or otherwise
dispose of any debt securities substantially similar to the Securities.
(g) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida, Chapter
92-198, An Act Relating to Disclosure of Doing Business with Cuba, and
the Company further agrees that if it commences engaging in business
with the government of Cuba or with any person or affiliate located in
Cuba after the date the Registration Statement becomes or has become
effective with the Securities and Exchange Commission or with the
Florida Department of Banking and Finance (the "Department"), whichever
date is later, or if the information reported in the Prospectus, if
any, concerning the Company's business with Cuba or with any person or
affiliate located in Cuba changes in any material way, the Company will
provide the Department notice of such business or change, as
appropriate, in a form acceptable to the Department.
(h) The Company will pay all costs and expenses incident to
the performance of it obligations hereunder, including, without
limiting the generality of the foregoing, all costs and expenses (i)
incident to the preparation, issuance, execution, authentication and
delivery of the Securities, (ii) incident to the preparation, printing
and filing under the Securities Act of the Registration Statement, the
Preliminary Final Prospectus and the Final Prospectus (including in
each case all exhibits, amendments and supplements thereto), (iii)
incurred in connection with the registration or qualification and
determination of eligibility for investment of the Securities under the
laws of such jurisdictions as the Representatives may designate
(including fees of counsel for the Representatives and their
disbursements), (iv) in connection with the listing of the Securities
on any stock exchange, (v) related to any filing with the National
Association of Securities Dealers, Inc., and (vi) in connection with
the printing (including word processing and duplication costs) and
delivery of any documents in connection with the offering, purchase,
sale and delivery of the Securities and the furnishing to the
Representatives, the Underwriters and dealers of copies of the
Registration Statement, the Preliminary Final Prospectus and the Final
Prospectus, including mailing and shipping, as herein provided. It is
understood, however, that except as provided in this Section,
Section 6 and Section 7 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their own counsel,
any transfer taxes on resale of any of the Securities by them, and any
advertising expenses connected with any offers they may make.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters' Securities shall
be subject to the accuracy of the representations and warranties on the part of
the Company contained herein as of the Execution Time and the Closing Date, to
the accuracy of the statements of the Company made in any certificates pursuant
to the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 p.m. New York City time, on the date
of determination of the public offering price, if such determination
occurred at or prior to 3:00 p.m. New York City time on such date or
(ii) 12:00 Noon New York City time on the business day following the
day on which the public offering price was determined, if such
determination occurred after 3:00 p.m. New York City time on such date;
if filing of the Final Prospectus, or any supplement thereto, is
required pursuant to
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Rule 424(b), the Final Prospectus, and any such supplement, shall have
been filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives
the opinion or letter of Cravath, Swaine & Xxxxx, counsel for the
Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with full corporate power and
authority to own its properties and conduct its business as
described in the Final Prospectus;
(ii) the Company's authorized equity capitalization is
as set forth in the Final Prospectus; the Securities conform
to the description thereof contained in the Final Prospectus;
and, if the Securities are to be listed on any securities
exchange, authorization therefor has been given, subject to
official notice of issuance and evidence of satisfactory
distribution, or the Company has filed a preliminary listing
application and all required supporting documents with respect
to the Securities with such securities exchange and such
counsel has no reason to believe that the Securities will not
be authorized for listing, subject to official notice of
issuance and evidence of satisfactory distribution;
(iii) the Indenture has been duly authorized, executed
and delivered, has been duly qualified under the Trust
Indenture Act, constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with
its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time
to time in effect), and conforms in all material respects to
the descriptions thereof in the Final Prospectus; and the
Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the
Indenture and delivered to and
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paid for by the Underwriters pursuant to this Agreement, in
the case of the Underwriters' Securities, or by the purchasers
thereof pursuant to Delayed Delivery Contracts, in the case of
any Contract Securities, will constitute legal, valid and
binding obligations of the Company entitled to the benefits of
the Indenture, and conform in all material respects to the
descriptions thereof in the Final Prospectus;
(iv) the Registration Statement has become effective
under the Act; any required filing of the Basic Prospectus,
any Preliminary Final Prospectus and the Final Prospectus, and
any supplements thereto, pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule
424(b); to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued, no proceedings for that purpose have been
instituted or threatened, and the Registration Statement and
the Final Prospectus (other than the financial statements and
other financial and statistical information contained therein
as to which such counsel need express no opinion) comply as to
form in all material respects with the applicable requirements
of the Act, the Exchange Act and the Trust Indenture Act and
the respective rules thereunder; and such counsel has no
reason to believe that at the Effective Date the Registration
Statement contained any untrue statement of a material fact or
omitted to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Final Prospectus includes any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(v) this Agreement and any Delayed Delivery
Contracts have been duly authorized, executed and
delivered by the Company; and
(vi) to the best knowledge of such counsel, no
consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation
of the transactions contemplated herein or in any Delayed
Delivery Contracts, except such as have been obtained under
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the Act and such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters and such
other approvals (specified in such opinion) as have been
obtained;
In rendering such opinion, such counsel may rely (x) as to matters
involving the application of laws of any jurisdiction other than the
State of New York or the United States, or the General Corporation Law
of the State of Delaware, to the extent deemed proper and specified in
such opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are satisfactory to counsel for the
Underwriters and (y) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the Company and
public officials. References to the Final Prospectus in this paragraph
(b) include any supplements thereto at the Closing Date.
(c) The Company shall have furnished to the Representatives
the opinion of Xxxxxx X. XxXxx, Vice President and General Counsel of
the Company, dated the Closing Date, to the effect that:
(i) each of the Company and its material subsidiaries
(individually a "Subsidiary" and collectively the
"Subsidiaries") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the jurisdiction in which it is chartered or organized, with
full corporate power and authority to own its properties and
conduct its business as described in the Final Prospectus, and
is duly qualified to do business as a foreign corporation and
is in good standing under the laws of each jurisdiction
wherein the failure to so qualify would have a material
adverse effect upon the Company and its Subsidiaries
considered as a whole;
(ii) all the outstanding shares of capital stock of
each Subsidiary have been duly and validly authorized and
issued and are fully paid and nonassessable and, except as
otherwise set forth in the Final Prospectus, all outstanding
shares of capital stock of these Subsidiaries are owned by the
Company either directly or through
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wholly owned Subsidiaries free and clear of any perfected
security interest and to the best knowledge of such counsel,
any other security interests, claims, liens or encumbrances;
(iii) to the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its Subsidiaries,
of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Final
Prospectus, and there is no franchise, contract or other
document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed as
an exhibit, which is not described or filed as required; and
the statements included or incorporated in the Final
Prospectus describing any legal proceedings or material
contracts or agreements relating to the Company fairly
summarize such matters;
(iv) neither the execution and delivery of the
Indenture, the issue and sale of the Securities, nor the
consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof or of any
Delayed Delivery Contracts will conflict with, result in a
breach or violation of, or constitute a default under any law
or the charter or by-laws of the Company or the terms of any
indenture or other agreement or instrument known to such
counsel and to which the Company or any of its Subsidiaries is
a party or bound or any judgment, order or decree known to
such counsel to be applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction
over the Company or any of its Subsidiaries; and
(v) no holders of securities of the Company have
rights to the registration of such securities under the
Registration Statement.
(d) The Representatives shall have received from
, counsel for the Underwriters,
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such opinion or opinions, dated the Closing Date, with respect to the
issuance and sale of the Securities, the Indenture, any Delayed
Delivery Contracts, the Registration Statement, the Final Prospectus
(together with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Final Prospectus, any supplement to the Final Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse change
in the financial condition, earnings, business or properties
of the Company and its subsidiaries, whether or not arising
from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(f) At the Closing Date, Ernst & Young LLP shall
have furnished to the Representatives a letter or
16
letters (which may refer to letters previously delivered to one or more
of the Representatives), dated as of the Closing Date, in form and
substance satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Act and the Exchange
Act and the respective applicable published rules and regulations
thereunder and stating in effect that:
(i) in their opinion the audited financial statements
and financial statement schedules and pro forma financial
statements included or incorporated in the Registration
Statement and the Final Prospectus and reported on by them
comply in form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and
the related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; their limited review in accordance with
standards established by the American Institute of Certified
Public Accountants of the unaudited interim financial
information as indicated in their reports incorporated in the
Registration Statement and the Final Prospectus; carrying out
certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which
would not necessarily reveal matters of significance with
respect to the comments set forth in such letter; a reading of
the minutes of the meetings of the stockholders, directors and
executive, finance and audit committees of the Company and the
Subsidiaries; and inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters of the Company and its subsidiaries as to transactions
and events subsequent to the date of the most recent audited
financial statements in or incorporated in the Final
Prospectus, nothing came to their attention which caused them
to believe that:
(A) any unaudited financial statements
included or incorporated in the Registration
Statement and the Final Prospectus do not
17
comply in form in all material respects with
applicable accounting requirements and with the
published rules and regulations of the Commission
with respect to financial statements included or
incorporated in quarterly reports on Form 10-Q under
the Exchange Act; and said unaudited financial
statements are not in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the audited
financial statements included or incorporated in the
Registration Statement and the Final Prospectus;
(B) with respect to the period subsequent to
the date of the most recent financial statements
(other than any capsule information), audited or
unaudited, in or incorporated in the Registration
Statement and the Final Prospectus, there were any
changes, at a specified date not more than five
business days prior to the date of the letter, in the
consolidated capital stock (other than issuances of
capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible
securities, in each case which were outstanding on
the date of the latest balance sheet included or
incorporated by reference in the Registration
Statement and the Final Prospectus) or any increase
in the consolidated long-term debt of the Company and
its subsidiaries or decreases in the shareholders'
equity of the Company or decreases in net assets of
the Company and its subsidiaries as compared with the
amounts shown on the most recent consolidated balance
sheet included or incorporated in the Registration
Statement and the Final Prospectus, or for the period
from the date of the most recent financial statements
included or incorporated in the Registration
Statement and the Final Prospectus to such specified
date there were any decreases, as compared with the
corresponding period in the preceding year in net
revenues or operating profit or net sales or net
income per share
18
of the Company and its subsidiaries, except in all
instances for changes or decreases set forth in such
letter, in which case the letter shall be accompanied
by an explanation by the Company as to the
significance thereof unless said explanation is not
deemed necessary by the Representatives; or
(C) the amounts included in any unaudited
"capsule" information included or incorporated in the
Registration Statement and the Final Prospectus do
not agree with the amounts set forth in the unaudited
financial statements for the same periods or were not
determined on a basis substantially consistent with
that of the corresponding amounts in the audited
financial statements included or incorporated in the
Registration Statement and the Final Prospectus;
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and the Final Prospectus and in Exhibit 12 to the
Registration Statement, including the information included or
incorporated in Item 6 of the Company's Annual Report on Form
10-K, incorporated in the Registration Statement and the
Prospectus, and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated in the Company's
Quarterly Reports on Form 10-Q, incorporated in the
Registration Statement and the Final Prospectus, agrees with
the accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation; and
(iv) on the basis of a reading of the unaudited pro
forma financial statements included or incorporated in the
Registration Statement and the Final Prospectus, carrying out
certain specified procedures, inquiries of certain officials
of
19
the Company and the acquired company who have responsibility
for financial and accounting matters, and proving the
arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in the pro forma
financial statements, nothing came to their attention which
caused them to believe that the pro forma financial statements
do not comply in form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation
S-X or that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of such
statements.
References to the Final Prospectus in this paragraph (e)
include any supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the
Execution Time, Ernst & Young LLP shall have furnished to the
Representatives a letter or letters, dated as of the Execution Time, in
form and substance satisfactory to the Representatives, to the effect
set forth above.
(g) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (e) of this Section 5 or (ii) any change, or any
development involving a prospective change, in or affecting the
business or properties of the Company and its subsidiaries the effect
of which, in any case referred to in clause (i) or (ii) above, is, in
the judgment of the Representatives, so material and adverse as to make
it impractical or inadvisable to proceed with the offering or delivery
of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto).
(h) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for
20
purpose of Rule 436(g) under the Act) or any notice given of any
intended or potential decrease in any such rating.
(i) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
(j) The Company shall have accepted Delayed Delivery Contracts
in any case where sales of Contract Securities arranged by the
Underwriters have been approved by the Company.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall
be delivered at the offices of Cravath, Swaine & Xxxxx, counsel for the Company,
at Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the Closing Date.
6. Reimbursement of Underwriters' Expenses. If
the sale of the Securities provided for herein is not con-
summated because any condition to the obligations of the
Underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or
because of any refusal, inability or failure on the part of
the Company to perform any agreement herein or comply with
any provision hereof other than by reason of a default by
any of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all reasonable out-
of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of
the Securities.
21
7. Indemnification and Contribution. (a) The
Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under
the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the
registration statement for the registration of the
Securities as originally filed or in any amendment thereof,
or in the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse
each Underwriter, as incurred, for any legal or other
expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that
the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any
Underwriter through the Representatives specifically for
inclusion therein; and provided further, that the Company
shall not be liable to any Underwriter under the indemnity
agreement in this subsection (a) with respect to any
Preliminary Final Prospectus to the extent that any such
loss, claim, damage or liability of such Underwriter results
from the fact that such Underwriter sold Securities to a
person as to whom it shall be established that there was not
sent or given, at or prior to the written confirmation of
such sale, a copy of the Final Prospectus (excluding
documents incorporated by reference) or of the Final
Prospectus as then amended or supplemented (excluding
documents incorporated by reference) in any case where such
delivery is required by the Act if the Company has
previously furnished copies thereof to such Underwriter and
the loss, claim, damage or liability of such Underwriter
results from an untrue statement or omission of a material
fact contained in the Preliminary Final Prospectus which was
corrected in the Final Prospectus (excluding documents
incorporated by reference) or in the Final Prospectus as
then amended or supplemented (excluding documents
incorporated by reference).
22
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to which
the Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made therein in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such action or claim
as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party and, after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the
23
defense thereof other than reasonable costs of investigation.
(d) In the event any indemnifying party to this Agreement
determines to settle, compromise or consent to the entry of any judgment in or
otherwise seek to terminate any pending or threatened action, claim, suit,
investigation or proceeding in respect of which any indemnified party under
subsection (a) or (b) above is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, at the request of such
indemnified party, the indemnifying party will reconfirm its obligations under
this Section 7 at such time.
(e) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Securities to which such loss, claim,
damage or liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters of the Securities on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company on the one hand or such Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contributions pursuant to this subsection
(e) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this
24
subsection (e). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (e) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters of Securities in this
subsection (e) to contribute are several in proportion to their respective
underwriting obligations with respect to such Securities and not joint.
(f) The obligations of the Company under this Section 7 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 7 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
8. Default by an Underwriter. (a) If any Underwriter shall
default in its obligation to purchase any of the Securities which it has agreed
to purchase hereunder, the Representatives may in their discretion arrange for
themselves or another party or other parties to purchase such Securities on the
terms contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Securities, the Company shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory to the
Representatives to purchase such Securities on such terms. In the event that,
within the respective prescribed period, the
25
Representatives notify the Company that they have so arranged for the purchase
of such Securities, or the Company notifies the Representatives that it has so
arranged for the purchase of such Securities, the Representatives or the Company
shall have the right to postpone the Closing Date for a period of not more than
seven days, in order to effect whatever changes may thereby be made necessary in
the Registration Statement or the Final Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments or
supplements to the Registration Statement or the Final Prospectus which in the
opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect if such person had originally been a party
to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Securities which remains unpurchased does not
exceed one-eleventh of the aggregate principal amount of the Securities, then
the Company shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of Securities which such Underwriter agreed to
purchase hereunder and, in addition, to require each non-defaulting Underwriter
to purchase its pro rata share (based on the principal amount of Securities
which such Underwriter agreed to purchase hereunder) of the Securities of such
defaulting Underwriter or Underwriters for which such arrangement have not been
made; but nothing herein shall relive a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Securities which remains unpurchased exceeds
one-eleventh of the aggregate principal amount of the Securities, as referred to
in subsection (b) above, or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Securities of a defaulting Underwriter or Underwriters, then this
Agreement shall thereupon be terminated, without liability on the part of any
non-defaulting Underwriter or the Company, except for the
26
indemnity and contribution agreements in this Section 7; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
9. Termination. This Agreement shall be subject to termination
in the absolute discretion of the Representatives, by notice given to the
Company prior to delivery of and payment for the Securities, if prior to such
time (a) trading in the Company's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (b) a banking moratorium
shall have been declared either by Federal or New York State authorities or (c)
there shall have occurred any outbreak or escalation of hostilities, declaration
by the United States of a national emergency or war or other calamity or crisis
the effect of which on financial markets is such as to make it, in the judgment
of the Representatives, impracticable or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the Final Prospectus
(exclusive of any supplement thereto).
10. Representations and Indemnities to Survive. The respective
indemnities, agreements, representations, warranties and other statements of the
Company and the several Underwriters, as set forth in this Agreement or made by
or on behalf of them, respectively, pursuant to this Agreement, shall remain in
full force and effect, regardless of any investigation (or any statement as to
the results thereof) made by or on behalf of any Underwriter or any controlling
person of any Underwriter, or the Company, or any officer or director or
controlling person of the Company, and shall survive delivery of and payment for
the Securities.
Anything herein to the contrary notwithstanding, the indemnity
agreement of the Company in subsection (a) of Section 7 hereof, the
representations and warranties in Section 1 hereof and any representation or
warranty as to the accuracy of the Registration Statement or the Final
Prospectus contained in any certificate furnished by the Company pursuant to
Section 5 hereof, insofar as they may constitute a basis for indemnification for
liabilities (other than payment by the Company of expenses incurred or paid in
the successful defense of any action, suit or proceeding) arising under the Act,
shall not extend to the
27
extent of any interest therein of a controlling person or partner of any
Underwriter who is a director, officer or controlling person of the Company when
the Registration Statement has become effective, except in each case to the
extent that an interest of such character shall have been determined by a court
of appropriate jurisdiction as not against public policy as expressed in the
Act. Unless in the opinion of counsel for the Company the matter has been
settled by controlling precedent, the Company will, if a claim for such
indemnification is asserted, submit to a court of appropriate jurisdiction the
question whether such interest is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
11. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telegraphed and confirmed to them, at the address specified
in Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at Xxx Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx
00000, attention of the General Counsel.
12. Successors. This Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Section 7 and Section 10 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Securities from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
13. Applicable Law. This Agreement will be
governed by and construed in accordance with the laws of the
State of New York.
28
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
WITCO CORPORATION,
by
-----------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
by
---------------------------
Name:
Title:
For itself and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated
Registration Statement No. 33-65203
Representative(s):
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include accrued
interest or amortization, if
any):
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location:
Type of Offering: [Delayed Offering or Non-Delayed
Offering]
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each contract: $
Maximum aggregate principal amount of all contracts: $
Modification of items to be covered by the letter from Ernst & Young LLP
delivered pursuant to Section 5(e) at the Execution Time:
SCHEDULE II
Underwriters Principal Amount
of Securities to
be Purchased
-----------------
$
-----------------
Total......................................................... $
=================
SCHEDULE III
Delayed Delivery Contract
, 19
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from Witco
Corporation (the "Company"), and the Company agrees to sell to the undersigned,
on , 19 , (the "Delivery Date"), $ principal amount of the Company's
(the "Securities") offered by
the Company's Prospectus dated , 19 , and related Prospectus Supplement dated ,
19 , receipt of a copy of which is hereby acknowledged, at a purchase price of
% of the principal amount thereof, plus [accrued interest] [amortization of
original issue discount], if any, thereon from , 19 , to the date of payment and
delivery, and on the further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned
shall be made on or before 11:00 AM, New York City time, on the Delivery Date to
or upon the order of the Company in New York Clearing House (next day) funds, at
your office or at such other place as shall be agreed between the Company and
the undersigned, upon delivery to the undersigned of the Securities in
definitive fully registered form and in such authorized denominations and
registered in such names as the undersigned may request by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date. If no request is received, the
Securities will be registered in the name of the undersigned and issued in a
denomination equal to the aggregate principal amount of Securities to be
purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery
of and make payment for Securities on the Delivery Date, and
2
the obligation of the Company to sell and deliver Securities on the Delivery
Date, shall be subject to the conditions (and neither party shall incur any
liability by reason of the failure thereof) that (a) the purchase of Securities
to be made by the undersigned, which purchase the undersigned represents is not
prohibited on the date hereof, shall not on the Delivery Date be prohibited
under the laws of the jurisdiction to which the undersigned is subject, and (b)
the Company, on or before the Delivery Date, shall have sold to certain
underwriters (the "Underwriters") such principal amount of the Securities as is
to be sold to them pursuant to the Underwriting Agreement referred to in the
Prospectus and Prospectus Supplement mentioned above. Promptly after completion
of such 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. The obligation of the undersigned to take delivery of
and make payment for the Securities, and the obligation of the Company to cause
the Securities to be sold and delivered, shall not be affected by the failure of
any purchaser to take delivery of and make payment for the Securities pursuant
to other contracts similar to this contract.
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.
It is understood that acceptance of this contract and other
similar contracts 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 required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date
3
first above written, when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Very truly yours,
----------------------------
(Name of Purchaser)
by
--------------------------
Name:
Title:
Accepted:
WITCO CORPORATION,
by
------------------------
Name:
Title:
