EXHIBIT 1.1
INTERNATIONAL SPECIALTY PRODUCTS INC.
-------------------------------------
Shares */
Common Stock
($0.01 par value)
Form of Common Stock Underwriting Agreement
New York, New York
, 1998
[NAME OF MANAGING UNDERWRITER(S)]
As Representative(s) of the several Underwriters,
[ADDRESS OF MANAGING UNDERWRITER(S)]
Ladies and Gentlemen:
International Specialty Products Inc., a corporation organized under
the laws of the State of Delaware (the "Company"), proposes to sell to the
several underwriters named in Schedule I hereto (the "Underwriters"), for whom
you (the "Representatives") are acting as representatives, _________ shares of
Common Stock, $0.01 par value per share (the "Common Stock") of the Company
(said shares to be issued and sold by the Company being hereinafter called the
"Underwritten Securities"). The Company also proposes to grant to the
Underwriters an option to purchase up to ____ additional shares of Common Stock
to cover over-allotments (the "Option Securities," and together with the
Underwritten Securities, the "Securities"). To the extent there are no
additional Underwriters listed on Schedule I other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or plural as the
context requires. Any reference herein to the Registration Statement, the Base
Prospectus, any Preliminary 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 (the "Incorporated Documents") which were filed under the
Exchange Act on or before the Effective Date of the Registration
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*/Plus an option to purchase from International Specialty Products Inc. ____
- additional shares to cover over-allotments.
NYFS01...:\01\47201\0041\2011\AGR8138L.25D
Statement or the issue date of the Base Prospectus, any Preliminary 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 Base Prospectus, any Preliminary 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 Base Prospectus, any Preliminary Prospectus or the
Final Prospectus, as the case may be, deemed to be incorporated therein by
reference. Certain terms used herein are defined in Section 17 hereof.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(a) The Company meets the requirements for the use of Form S-3 under
the Act and has prepared and filed with the Commission a registration
statement (Registration No. 333-59593) on Form S-3, including the related
Base 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 related Base Prospectus, each of which has previously
been furnished to you. The Company will next file with the Commission one
of the following: either (1) prior to the Effective Date of such
registration statement, a further amendment to such registration statement
(including the form of base prospectus) or (2) after the Effective Date of
such registration statement, pursuant to Rules 415 and 424(b)(2), (3) or
(5), a prospectus supplement to the form of prospectus included in such
registration statement. In the case of clause (2), 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 such registration statement and the
Final Prospectus. As filed, such Final Prospectus shall contain all Rule
430A Information, together with all other such required information, 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 latest Preliminary
Prospectus) as the Company has advised you, prior to the Execution Time,
will be included or made therein.
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(b) On the Effective Date, and at all times subsequent thereto and
including the Closing Date and on any date on which Option Securities are
purchased, if such date is not the Closing Date (any such date, a
"Settlement Date"), and during such longer period as the Final Prospectus
may be required to be delivered in connection with sales by the
Underwriters or a dealer, and during such longer period until any
post-effective amendment to the Registration Statement becomes effective,
the Registration Statement (including any Rule 462 Registration Statement)
and the Final Prospectus (as amended or supplemented if the Company shall
have filed with the Commission an amendment or supplement thereto)
complied, and will comply, in all material respects with the applicable
provisions of the Act and did not, and will not, contain an untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements made
therein (in the case of the Base Prospectus, Preliminary Prospectus or
Final Prospectus, in light of the circumstances under which they were
made) not misleading. No representation and warranty, however, is made in
this paragraph (b) with respect to written information contained in or
omitted from the Registration Statement, the Base Prospectus, any
Preliminary Prospectus or the Final Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with information
furnished to the Company by or on behalf of you with respect to the
Underwriters and the plan of distribution of the Securities expressly for
use in connection with the preparation thereof.
(c) Each of the Incorporated Documents, when the same was first
filed with the Commission, complied in all material respects with the
applicable provisions of the Act and the Exchange Act and the regulations
promulgated thereunder, and any further documents so filed and
incorporated by reference will, when they are filed with the Commission,
comply in all material respects with the applicable provisions of the Act
and the Exchange Act and such regulations. None of such filed documents
when they were filed (or, if an amendment with respect thereto was filed,
when such amendment was filed), 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, in light of
circumstances under which they were made, not misleading, and no such
further document, when it is filed with the Commission, will contain an
untrue statement of a material fact required to be stated therein or
necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading.
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(d) 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 corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Final Prospectus; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not have a material adverse effect
on the condition, financial or otherwise, or on the results of operations,
business or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business (a "Material Adverse Effect").
(e) Each significant subsidiary (as such term is defined in Rule 405
of the Regulations) (the "Significant Subsidiaries") of the Company has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Registration Statement and the
Final Prospectus and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure
to so qualify would not have, singly or in the aggregate, a Material
Adverse Effect. All of the issued and outstanding shares of capital stock
of each of the Significant Subsidiaries have been duly authorized and
validly issued and are fully paid and nonassessable and are owned by the
Company, directly or indirectly, and in each case free and clear of all
liens, security interests, pledges, charges, encumbrances, stockholders'
agreements and voting trusts, other than as set forth in the Registration
Statement and the Final Prospectus. Except as set forth in the Final
Prospectus, there are no outstanding rights, subscriptions, warrants,
calls, options or other agreements of any kind to which the Company is a
party with respect to the capital stock of any Significant Subsidiary.
(f) All of the currently outstanding shares of capital stock of the
Company have been duly and validly authorized and issued, are fully paid
and nonassessable and were not issued in violation of or subject to any
preemptive rights. The shares of Common Stock of the Company to be
outstanding on the Closing Date, including the Securities, have been duly
authorized and, when
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issued (and, in the case of the Securities, delivered and sold in
accordance with the terms of this Agreement) will be validly issued, fully
paid and nonassessable, and will not have been issued in violation of or
be subject to any preemptive rights. Upon delivery of and payment for the
Securities in accordance with this Agreement, the Underwriters will
receive valid title to those of the Securities to be purchased by them
from the Company, free and clear of all liens, security interests,
pledges, charges, encumbrances, stockholders' agreements and voting
trusts. The Company has, as of the date hereof, and will have, as of the
Closing Date and the Settlement Date, if any, an authorized and
outstanding capitalization as set forth in the Registration Statement and
as shall be set forth in the Final Prospectus, both on an historical basis
and as adjusted to give effect to the offering of the Shares. The
Company's capital stock conforms to the description thereof set forth in
the Registration Statement and as shall be set forth in the Final
Prospectus.
(g) Since the respective dates as of which information is given in
the Registration Statement and the Final Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the results of operations,
business or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business (a "Material Adverse Change"), (B) there have been no
transactions entered into by the Company or any of its Significant
Subsidiaries, other than those in the ordinary course of business, which
are material with respect to the condition, financial or otherwise, or to
the results of operations, business or business prospects of the Company
and its subsidiaries considered as one enterprise, and (C) there has been
no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock, except for regular quarterly
dividends, if any.
(h) The Company has the corporate power and authority to enter into
and perform its obligations under this Agreement, and to issue, sell and
deliver the Securities. This Agreement has been duly authorized, executed
and delivered by the Company.
(i) Neither the Company nor any of its Significant Subsidiaries is
in violation of its charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, loan agreement, note, lease or other
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agreement or instrument to which the Company or any of its Significant
Subsidiaries is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any of its
Significant Subsidiaries is subject, the effect of which violation or
default in performance or observance, singly or in the aggregate, would
have a Material Adverse Effect; and the execution, delivery and
performance of this Agreement, and the issuance and sale of the Securities
and the consummation of the transactions contemplated hereby and thereby
will not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its Significant
Subsidiaries pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease 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 may be bound, or to which any of the property or assets of
the Company or any of its Significant Subsidiaries is subject, or violate
any applicable law, administrative regulation or administrative or court
decree, in each case, the effect of which conflict, breach, default, lien,
charge, encumbrance or violation, singly or in the aggregate, would have a
Material Adverse Effect, nor will such action result in any violation of
the provisions of the charter or by-laws of the Company or any of its
Significant Subsidiaries.
(j) Except as described in the Registration Statement and the Final
Prospectus, there is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, now pending or, to
the knowledge of the Company, threatened against or affecting the Company
or any of its Significant Subsidiaries, which would, singly or in the
aggregate, result in any Material Adverse Change or which would materially
and adversely affect the consummation of this Agreement; all pending legal
or governmental proceedings to which the Company or any of its Significant
Subsidiaries is a party or of which any of their respective properties or
assets is the subject which are not disclosed in the Registration
Statement or the Final Prospectus, including ordinary routine litigation
incidental to the business, are, considered in the aggregate, not material
to the condition, financial or otherwise, or to the results of operations,
business or business prospects of the Company and its Significant
Subsidiaries considered as one enterprise; and there have been no material
developments with respect to any action, suit or proceeding, whether or
not such action, suit or proceeding is described in the
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Registration Statement or the Final Prospectus, which, singly or in the
aggregate, would result in a Material Adverse Change.
(k) Xxxxxx Xxxxxxxx LLP, the accountants who certified the financial
statements and supporting schedules included or incorporated by reference
in the Registration Statement and the Final Prospectus, are independent
public accountants as required by the Act and the regulations promulgated
thereunder.
(l) The financial statements, including the notes thereto, included
in or incorporated by reference in the Registration Statement and the
Final Prospectus present fairly in all material respects the financial
position of the Company and its subsidiaries and of the Company's
predecessors as of the dates indicated and the results of their operations
for the periods specified; except as otherwise stated in the Registration
Statement and as shall be stated in the Final Prospectus, said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis.
(m) The pro forma financial information of the Company and its
subsidiaries and of the Company's predecessors included in or incorporated
by reference in the Final Prospectus presents fairly in all material
respects the information shown therein, and has been prepared on the basis
described in the Final Prospectus.
(n) Except as set forth in the Registration Statement or the Final
Prospectus, neither the Company nor any of its Significant Subsidiaries
has violated, or is in violation of, any foreign, federal, state or local
law or regulation relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), nor any federal or state laws
relating to discrimination in the hiring, promotion or pay of employees
nor any applicable federal or state wages and hours laws, nor any
provisions of the Employee Retirement Income Security Act or the rules and
regulations promulgated thereunder, which, in either case, singly or in
the aggregate, would result in any Material Adverse Change.
(o) Each of the Company and its Significant Subsidiaries has such
permits, licenses, franchises and authorizations of governmental or
regulatory
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authorities ("permits"), including, without limitation, under any
applicable Environmental Laws, as are necessary to own, lease and operate
its respective properties and to conduct its business; each of the Company
and its Significant Subsidiaries has fulfilled and performed all of its
obligations with respect to such permits and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the
rights of the holder of any such permit, except, in any case, singly or in
the aggregate, where the failure to have such permits or fulfill and
perform such obligations would not have a Material Adverse Effect; such
permits contain no restrictions that are materially burdensome to the
Company or its Significant Subsidiaries.
(p) In the ordinary course of their business, the Company and its
Significant Subsidiaries conduct reviews of the effect of Environmental
Laws on the business, operations and properties of the Company and its
Significant Subsidiaries, in the course of which they identify and
evaluate associated costs and liabilities (including, without limitation,
any capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such reviews,
except as set forth in the Registration Statement or the Final Prospectus,
the Company has reasonably concluded that such associated costs and
liabilities would not, singly or in the aggregate, have a Material Adverse
Effect.
(q) The Company is not now, nor after giving effect to the offering
and sale of the Securities and application of the net proceeds therefrom
as shall be described in the Final Prospectus under the caption "Use of
Proceeds" will it be, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(r) Each Preliminary Prospectus filed pursuant to Rule 424 under the
Act complied when so filed in all material respects with the Act and the
regulations promulgated thereunder.
(s) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Act with respect to any
securities of the Company (other than registration statements that have
8
previously been filed) or to require the Company to include such
securities with the Securities registered pursuant to the Registration
Statement.
Any certificate signed by any officer of the Company and delivered
to the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. (a) 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 a purchase price of $___ per
share, the amount of the Underwritten Securities set forth opposite such
Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants
an option to the several Underwriters to purchase, severally and not
jointly, up to _______ Option Securities at the same purchase price per
share as the Underwriters shall pay for the Underwritten Securities. Said
option may be exercised only to cover over-allotments in the sale of the
Underwritten Securities by the Underwriters. Said option may be exercised
in whole or in part at any time (but not more than once) on or before the
30th day after the date of the Final Prospectus upon written notice by the
Representatives to the Company setting forth the number of shares of the
Option Securities as to which the several Underwriters are exercising the
option and the Settlement Date. The number of shares of the Option
Securities to be purchased by each Underwriter shall be the same
percentage of the total number of shares of the Option Securities to be
purchased by the several Underwriters as such Underwriter is purchasing of
the Underwritten Securities, subject to such adjustments as you in your
absolute discretion shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option provided for in
Section 2(b) hereof shall have been exercised on or before the third Business
Day prior to the Closing Date) shall be made at 10:00 a.m., New York City time,
on _______, 1998, or at such time on such later date not more than three
Business Days after the foregoing date as the Representatives shall designate,
which date and time may be
9
postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the 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 wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Underwritten Securities and the Option Securities
shall be made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Company will deliver the
Option Securities (at the expense of the Company) to the Representatives, at
________________, New York, New York, on the date specified by the
Representatives (which shall be within three Business Days after exercise of
said option) 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 wire transfer payable in
same-day funds to an account specified by the Company. If settlement for the
Option Securities occurs after the Closing Date, the Company will deliver to the
Representatives on the Settlement Date for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. 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
thereof, 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 to the Final Prospectus or any Rule
462(b) Registration Statement 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
10
reasonably object in writing, unless the Company shall conclude, upon the
advice of counsel, that any such amendment or supplement must be filed at
a time prior to obtaining your consent. Subject to the foregoing sentence,
if the Registration Statement has become or becomes effective pursuant to
Rule 430A, or filing of the Final Prospectus is otherwise required under
Rule 424(b), 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 (1) when the Registration Statement, if not effective at
the Execution Time, shall have become effective, (2) when the Final
Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b) or when any Rule
462(b) Registration Statement shall have been filed with the Commission,
(3) when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or become
effective, (4) of any request by the Commission or its staff for any
amendment of the Registration Statement, or any Rule 462(b) Registration
Statement, or for any supplement to the Final Prospectus or for any
additional information, (5) 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 (6) 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 institution or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of
any such stop order or the suspension of any such qualification and, if
issued, to obtain as soon as possible the withdrawal thereof.
(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 (1) notify the Representatives of such event, (2)
prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or
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effect such compliance and (3) supply any supplemented Final Prospectus to
you in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally
available (within the meaning of Section 11(a) of the Act and Rule 158 of
the regulations thereunder) 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 of the regulations thereunder.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, a copy of a manually-signed Registration
Statement (including exhibits thereto) and to each other Underwriter a
copy of the Registration Statement (without 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 each Preliminary Prospectus and the Final
Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or other
production of all documents relating to the offering.
(e) The Company will arrange, if necessary, 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 pay
any fee of the National Association of Securities Dealers, Inc., in
connection with its review of the offering; provided that in no event
shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that
would subject it to service of process in suits, other than those arising
out of the offering or sale of the Securities, in any jurisdiction where
it is not now so subject.
(f) The Company will not, without the prior written consent of the
Representatives, for a period of days following the Execution Time, offer,
sell or contract to sell, or otherwise dispose of (or enter into any
transaction which is designed to, or might reasonably be expected to,
result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Company
or any affiliate of the Company or any person in privity with the Company
or any affiliate of the Company) directly or indirectly, or announce the
offering of, any other shares
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of Common Stock or any securities convertible into, or exchangeable for,
shares of Common Stock; provided, however, that the Company may issue and
sell Common Stock pursuant to any employee stock option plan, stock
ownership plan or dividend reinvestment plan of the Company (including any
Company stock fund utilized in connection with any employee benefit plan)
in effect at the Execution Time and the Company may issue Common Stock
issuable upon the conversion of securities or the exercise of warrants
outstanding at the Execution Time.
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities; provided, however that nothing in
this paragraph (g) shall prevent the Company from establishing and
effecting transactions pursuant to a share repurchase program in
compliance with applicable law.
6. Conditions to the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase the Underwritten Securities
and the Option Securities, as the case may be, shall be subject to the accuracy,
in all material respects, of the representations and warranties on the part of
the Company contained herein as of the Execution Time, the Closing Date and any
Settlement Date pursuant to Section 3 hereof, 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) 9:30 a.m., 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 Rule 424(b), the Final Prospectus, and
any such supplement, will be 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
13
been issued and no proceedings for that purpose shall have been instituted
or threatened.
(b) (i) The Company shall have requested and caused Weil, Gotshal &
Xxxxxx LLP, counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date (and any Settlement
Date, as the case may be) and addressed to the Representatives, to the
effect that:
(1) all of the currently outstanding shares of capital stock of the
Company have been duly and validly authorized and issued, are fully
paid and nonassessable and were not issued in violation of or
subject to any preemptive rights; the Securities have been duly
authorized, and, when issued and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be validly issued,
fully paid and nonassessable and will not have been issued in
violation of or subject to any preemptive rights; the Securities are
duly listed, and admitted and authorized for trading, subject to
official notice of issuance and evidence of satisfactory
distribution, on the New York Stock Exchange; and, except as set
forth in the Final Prospectus, no options, warrants or other rights
to purchase, agreements or other obligations to issue, or rights to
convert any obligations into or exchange any securities for, shares
of capital stock of or ownership interests in the Company are
outstanding;
(2) the Registration Statement has become effective under the
Act; any required filing of 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
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 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 and the Exchange Act and the respective rules thereunder;
and such counsel has no reason to believe that on the Effective Date
or at the Execution Time the Registration Statement contained any
untrue statement of a material fact or omitted
14
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Final Prospectus as of its date and on the Closing Date (or any
Settlement Date, as the case may be) included or includes any untrue
statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (in each
case, other than the financial statements and other financial
information contained therein, as to which such counsel need express
no opinion);
(3) this Agreement has been duly authorized, executed and
delivered by the Company;
(4) the Company is not now, nor after giving effect to the
offering and sale of the Securities and the application of the net
proceeds therefrom as described in the Final Prospectus, will it be,
an "investment company" within the meaning of the Investment Company
Act of 1940, as amended;
(5) no consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in
connection with the transactions contemplated herein, except such as
have been obtained under 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 in
the manner contemplated in this Agreement and in the Final
Prospectus and such other approvals (specified in such opinion) as
have been obtained; and
(6) to our knowledge, there are no contracts, agreements or
understandings between the Company and any person granting such
person the right to require the Company to file a registration
statement under the Act with respect to any securities of the
Company (other than registration statements that have previously
been filed) or to require the Company to include such securities
with the Securities registered pursuant to the Registration
Statement.
(ii) The Company shall have requested and caused, Xxxxxxx X.
Xxxxxxxx, Esq., Executive Vice President and General Counsel of the
Company, to have furnished to the Representatives his opinion dated the
15
Closing Date (and any Settlement Date, as the case may be) and addressed
to the Representatives, to the effect that:
(1) each of the Company and its Significant Subsidiaries has
been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own, lease, and
operate its properties and to conduct its business as described in
the Registration Statement and the Final Prospectus, and is duly
qualified as a foreign corporation to do business and is in good
standing in each jurisdiction in which qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify would
not have a Material Adverse Effect;
(2) all of the issued and outstanding shares of capital stock
of each of the Significant Subsidiaries have been duly authorized
and validly issued and are fully paid and nonassessable and are
owned by the Company, directly or indirectly, and in each case free
and clear of all liens, security interests, pledges, charges,
encumbrances, stockholders' agreements and voting trusts, other than
as set forth in the Registration Statement and the Final Prospectus;
(3) the Company's authorized equity capitalization is as set
forth in the Final Prospectus; the Company's capital stock conforms
in all material respects to the description thereof set forth in the
Registration Statement and as shall be set forth in the Final
Prospectus;
(4) to the knowledge of such counsel, there is no action, suit
or proceeding before or by any court or governmental agency or body,
domestic or foreign, now pending or, threatened against or affecting
the Company or any of its Significant Subsidiaries, which would,
singly or in the aggregate, result in any Material Adverse Change
and which is not disclosed in the Final Prospectus; and
(5) the issuance and sale of the Securities, and the
consummation of the transactions contemplated hereby or the
fulfillment of the terms hereof will not conflict with, constitute a
breach of, or default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of
the Company or
16
any of its Significant Subsidiaries pursuant to, (i) the charter or
by-laws of the Company or any of its Significant Subsidiaries or
(ii) the terms of any contract, indenture, mortgage, loan agreement,
note, lease 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 may be bound, or to which any of the property or assets of
the Company or any of its Significant Subsidiaries is subject, or
violate any applicable law, administrative regulation or
administrative or court decree, in each case, the effect of which
conflict, breach, default, lien, charge, encumbrance or violation,
singly or in the aggregate, would have a Material Adverse Effect.
In rendering their opinions required by subsections (b)(i) and (ii)
of this Section, Weil, Gotshal & Xxxxxx LLP and Xx. Xxxxxxxx may rely (A) as to
matters involving the application of laws of any jurisdiction other than the
State of New York, Delaware corporate or the Federal laws of the United States,
to the extent they deem proper and specified in such opinion, upon the opinion
of other counsel of good standing whom they believe to be reliable and who are
reasonably satisfactory to counsel for the Underwriters and (B) as to matters of
fact, to the extent they deem 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.
Weil, Gotshal & Xxxxxx LLP and Xx. Xxxxxxxx shall additionally state
that each such counsel (together with, in the case of Xx. Xxxxxxxx, attorneys on
his staff acting under his supervision) have participated in conferences with
directors, officers and other representatives of the Company, representatives of
the independent public accountants for the Company, representatives of the
Underwriters and representatives of counsel for the Underwriters, at which
conferences the contents of the Final Prospectus and related matters were
discussed, and, although such counsel has not independently verified and is not
passing upon and assumes no responsibility for the accuracy, completeness or
fairness of the statements contained in the Final Prospectus, no facts have come
to such counsel's attention which lead it or him to believe that the
Underwriters, on the date thereof or at the Closing Date (or the Settlement
Date, as the case may be), contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to be stated
therein or necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading (it being understood
that such counsel expresses no view with respect to the financial statements and
related notes, the
17
financial statement schedules and the other financial, statistical and
accounting data included in the Final Prospectus).
(c) The Representatives shall have received from counsel for the
Underwriters, such opinion or opinions, dated the Closing Date (and any
Settlement Date, as the case may be) and addressed to the Representatives,
with respect to the issuance and sale of the Securities, 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
reasonably request for the purpose of enabling them to pass upon such
matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and a Senior or Executive Vice President of the Company, dated
the Closing Date (and any Settlement Date, as the case may be), to the
effect that the signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus, any supplements 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 (and any Settlement Date, as the case may be) with
the same effect as if made on the Closing Date (and any Settlement
Date, as the case may be) 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 (and any
Settlement Date, as the case may be);
(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 or incorporated by reference in the Final Prospectus, there
has been no Material Adverse Change, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or contemplated in the Final Prospectus.
18
(e) The Company shall have requested and caused Xxxxxx Xxxxxxxx LLP
to have furnished to the Representatives, at the Execution Time and at the
Closing Date (and any Settlement Date, as the case may be), letters, dated
respectively as of the Execution Time and as of the Closing Date (and any
Settlement Date, as the case may be), 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 that they have
performed a review of the unaudited interim financial information of the
Company included in or incorporated by reference in the Final Prospectus
in accordance with Statement on Auditing Standards No. 71, 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 by reference in the Registration Statement
and the Final Prospectus and reported on by them comply as to form
in all material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related published rules and
regulations;
(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 under Statement on Auditing Standards No. 71, of the
unaudited interim financial information, incorporated by reference
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 committees of the
Company and its Significant 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 December 31, 199_, nothing
came to their attention which caused them to believe that:
(1) any unaudited financial statements included or
incorporated by reference in the Registration Statement and
the Final Prospectus do not comply as to form in all material
19
respects with applicable accounting requirements of the Act
and with the published rules and regulations of the Commission
with respect to financial statements included or incorporated
by reference in quarterly reports on Form l0-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 by
reference in the Registration Statement and the Final
Prospectus or
(2) with respect to the period subsequent to ______,
199__, there were any changes, at a specified date not more
than five days prior to the date of the letter, in the
long-term debt of the Company and its subsidiaries or capital
stock of the Company or decreases in the stockholders' equity
of the Company as compared with the amounts shown on the
________, 199__, consolidated balance sheet included or
incorporated by reference in the Registration Statement and
the Final Prospectus, or for the period from , 199__ to such
specified date there were any decreases, as compared with
________, 199__, 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.
(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
set forth under the captions and in the Final Prospectus, the
information included or incorporated by reference in Items 1, 2, 6,
7 and 11 of the Company's Annual Report on Form 10-K, incorporated
by reference
20
in the Registration Statement and the Final Prospectus, and the
information included in the "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included or
incorporated by reference in the Company's Quarterly Reports on Form
l0-Q, incorporated by reference in the Registration Statement and
the Final Prospectus, [insert reference to any such information
appearing in a Current Report on Form 8-K incorporated by reference
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 by reference in the
Registration Statement and the Final Prospectus (the "pro forma
financial statements"); carrying out certain specified procedures;
inquiries of certain officials of the 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 as to 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.
(f) 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 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company and its Significant Subsidiaries, taken as a
whole, 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
21
thereto) the effect of which, in any case referred to in clause (i) or
(ii) above, is, in the sole 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).
(g) Prior to the Closing Date (and any Settlement Date, as the case
may be), the Company shall have furnished to the Representatives such
further information, certificates and documents as the Representatives may
reasonably request.
(h) At the Execution Time, the Company shall have furnished to the
Representatives a letter substantially in the form of Exhibit A hereto
from [each officer and director of the Company and [names of major
stockholders]] addressed to the Representatives.]
If any of the conditions specified in this Section 6 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
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of _____________, counsel for the Underwriters, at
_________________________, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied
(other than Section 6(c)), 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 in any case by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally through the
Representatives on demand for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that
22
shall have been incurred by them in connection with the proposed purchase and
sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement for the registration of
the Securities as originally filed or in any amendment thereof, or in any
Preliminary 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 (in each case with
respect to the Preliminary Prospectus or Final Prospectus, in light of the
circumstances under which they were made), and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; 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. This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, to the
same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to written information relating to
such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Underwriter may otherwise
have. The Company acknowledges that the
23
statements set forth in [the last paragraph of the cover page regarding
delivery of the Securities, the legend in block capital letters on page
___ related to stabilization, syndicate covering transactions and penalty
bids and, under the heading "Underwriting" or "Plan of Distribution", (i)
the list of Underwriters and their respective participation in the sale of
the Securities, (ii) the sentences related to concessions and reallowances
and (iii) the paragraph related to stabilization, syndicate covering
transactions and penalty bids] in any Preliminary Prospectus and the Final
Prospectus constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in any Preliminary
Prospectus or the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the commencement thereof (but the failure so to notify the
indemnifying party shall not relieve it from any liability that it may
have under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture
by the indemnifying party of substantial rights and defenses). The
indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below); provided,
however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
within a reasonable
24
time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An indemnifying
party will not, without the prior written consent of the indemnified
parties (which consent shall not be unreasonably withheld), settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether or
not the indemnified parties are actual or potential parties to such claim
or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters
severally agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses")
to which the Company and one or more of the Underwriters may be subject,
in such proportions as are appropriate to reflect the relative benefits
received by the Company, on the one hand, and by the Underwriters, on the
other, from the offering of the Securities; provided, however, that in no
case shall any Underwriter (except as may be provided in any agreement
among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or
commission applicable to the Securities purchased by such Underwriter
hereunder). If such allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Underwriters
severally shall contribute in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the
Company, on the one hand, and the Underwriters, on the other, in
connection with the statements or omissions which resulted in such Losses
as well as any other relevant equitable considerations. Benefits received
by the Company shall be deemed to be equal to the total net proceeds from
the offering (before deducting expenses) received by it, and benefits
received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the
cover page of the Final Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state
a material fact relates to
25
information provided by the Company on the one hand or the Underwriters on
the other, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such untrue statement
or omission. The Company and the Underwriters agree that it would not be
just and equitable if contribution were determined by pro rata allocation
or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions
of this paragraph (d), 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. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning
of either the Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any
26
defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. 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 at any time prior to
such time (i) 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; provided that any such
suspension, limitation or minimum prices exists at the time of such termination,
(ii) a banking moratorium shall have been declared either by Federal or New York
State authorities or (iii) 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 sole judgment of the Representatives, impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Final Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 8 hereof,
and will survive delivery of and payment for the Securities. The provisions of
Sections 7 and 8 hereof shall survive the termination or cancellation of this
Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the ____________ General Counsel (fax no.: (212)
___________) and confirmed to the General Counsel, ____________, at
______________, Attention: General Counsel; or, if sent to the Company, will be
mailed, delivered or telefaxed to (000) 000-0000 and confirmed to it at 0000
Xxxx Xxxx, Xxxxx, Xxx Xxxxxx 00000, Attention: Legal Department.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and
27
directors and controlling persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Base Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement relating to all offerings of
securities under the Registration Statement.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
28
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that is first filed pursuant to Rule 424(b) after the Execution
Time, together with the Base Prospectus or, if no filing pursuant to Rule 424(b)
is required, shall mean the Base Prospectus relating to the Securities included
in the Registration Statement at the Effective Date.
"Preliminary Prospectus" shall mean any preliminary prospectus
supplement to the Base Prospectus included in the Registration Statement at the
Effective Date that is used prior to the filing of the Final Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, as last amended prior to the Effective Date
including all exhibits and schedules thereto and all documents (including
financial statements, financial schedules and exhibits) incorporated therein by
reference and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing Date, shall
also mean such Rule 462(b) Registration Statement.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
"Rule 430A Information" shall mean 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.
"Rule 462(b) Registration Statement shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating to
the offering covered by the registration statement referred to in Section 1(a)
hereof.
29
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,
INTERNATIONAL SPECIALTY PRODUCTS INC.
By:
---------------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted as
of the date first above written.
[NAME OF MANAGING UNDERWRITER(S)]
By:
---------------------------
By:
----------------------
Name:
Title:
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
30
[Form of Lock-Up Agreement] EXHIBIT A
[LETTERHEAD OF OFFICER, DIRECTOR OR MAJOR STOCKHOLDER OF
INTERNATIONAL SPECIALTY PRODUCTS INC.]
International Specialty Products Inc.
-------------------------------------
Public Offering of Common Stock
-------------------------------
,19
[NAME OF MANAGING UNDERWRITER(S)]
As Representative[s] of the several Underwriters,
[ADDRESS OF MANAGING UNDERWRITER(S)]
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed Underwriting Agreement (the "Underwriting Agreement"), between
International Specialty Products Inc., a Delaware corporation (the "Company"),
and [each of] you as representative[s] of a group of Underwriters named therein,
relating to an underwritten public offering of Common Stock, $0.01 par value per
share (the "Common Stock"), of
the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without the prior written
consent of the Representative(s), offer, sell, contract to sell, pledge or
otherwise dispose of, or file (or participate in the filing of) a registration
statement with the Securities and Exchange Commission in respect of, or
establish or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Securities
31
Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder with respect to, any
shares of capital stock of the Company or any securities convertible into or
exercisable or exchangeable for such capital stock, or publicly announce an
intention to effect any such transaction, for a period of days after the date of
this Agreement, other than shares of Common Stock disposed of as bona fide gifts
approved by the Representative(s).
If for any reason the Underwriting Agreement shall be terminated
prior to the Closing Date (as defined in the Underwriting Agreement), the
agreement set forth above shall likewise be terminated.
Yours very truly,
[SIGNATURE OF OFFICER, DIRECTOR OR MAJOR
STOCKHOLDER]
[NAME AND ADDRESS OF OFFICER, DIRECTOR OR
MAJOR STOCKHOLDER]
32
SCHEDULE I
----------
UNDERWRITERS NUMBER OF UNDERWRITTEN
------------ SECURITIES TO BE PURCHASED
--------------------------
Total.......................................................
---------
=========
33
