Exhibit 1.3
[Debt Securities]
UNDERWRITING AGREEMENT
[Date]
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
AMETEK, Inc., a Delaware corporation (the "Company"), proposes to sell
to the underwriters named in Schedule II hereto (the "Underwriters"), for whom
you are acting as representatives (the "Representatives"), the principal amount
of its securities identified in Schedule I hereto (the "Securities"). The
Securities will be issued pursuant to either a senior indenture (the "Senior
Indenture") dated as of ______ between the Company and ______, as trustee or a
subordinated indenture dated as of ______ between the Company and ___, as
trustee (the "Subordinated Indenture" and together with the Senior Indenture,
the "Indenture"), as applicable. 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, each shall be deemed
to refer to such firm or firms.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933, as amended (the "Act") and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on such form (the file number of which is set forth in Schedule I hereto), which
has become effective, for the registration under the Act of the Securities. Such
registration statement, as amended at the date of this Agreement, meets the
requirements set forth in Rule 415(a)(1) under the Act and complies in all other
material respects with said Rule. The Company proposes to file with the
Commission pursuant to Rule 424 or Rule 434 under the Act a supplement to the
form of prospectus included in such registration statement relating to the
Securities and the plan of distribution thereof and has previously advised you
of all further information (financial and other) with respect to the Company to
be set forth therein. Such registration statement, including the exhibits
thereto, as amended at the date of this Agreement, is hereinafter called the
"Registration Statement"; such prospectus in the form in which it appears in the
Registration Statement is hereinafter called the "Basic Prospectus"; and such
supplemented form of prospectus, in the form in which it shall be filed with the
Commission pursuant to Rule 424 or Rule 434 (including the Basic Prospectus as
so supplemented) is hereinafter called the "Final Prospectus." Any preliminary
form of the Final Prospectus which has heretofore been filed pursuant to Rule
424 hereinafter is called the "Preliminary Final Prospectus." 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 Securities Exchange Act of 1934, as amended (the
"Exchange Act") on or before the date of this Agreement, 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, and the 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 date of this Agreement, or the issue date of the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus, as the case may be,
and deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first
filed pursuant to Rule 424 or Rule 434 under the Act, when, prior to the Closing
Date (as hereinafter defined), any amendment to the Registration Statement
becomes effective (including the filing of any document incorporated by
reference in the Registration Statement), when any supplement to the Final
Prospectus is filed with the Commission and at the Closing Date (as hereinafter
defined), (i) the Registration Statement as amended as of any such time, and the
Final Prospectus, as amended or supplemented as of any such time, and the
Indenture will comply in all material respects with the applicable requirements
of the Act, the Trust Indenture Act of 1939 (the "Trust Indenture Act") and the
Exchange Act and the respective rules thereunder, (ii) the Registration
Statement, as amended as of any such time, will not contain any 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 therein not misleading, and
(iii) the Final Prospectus, as amended or supplemented as of any such time, will
not contain any 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 therein, in light of the circumstances under which they were made,
not misleading; provided, however, that the Company makes no representations or
warranties as to (A) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification of the Trustee (Form
T-1) under the Trust Indenture Act of the Trustee or (B) the information
contained in or omitted from the Registration Statement or the Final Prospectus
or any amendment thereof or 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 use in
connection with the preparation of the Registration Statement and the Final
Prospectus.
(c) Each direct and indirect subsidiary of the Company is set
forth on Schedule III attached hereto (each, a "Subsidiary"). All the
outstanding shares of capital stock of the Company and each Subsidiary have been
duly authorized and validly issued, are fully paid and nonassessable and are
free of any preemptive or similar rights.
(d) Each of the Company and the Subsidiaries is a corporation
duly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation with full corporate power and authority to own,
lease and operate its properties and engage in the business in which it is
engaged or in which it proposes to engage as described in the Registration
Statement, the preliminary prospectus and the Prospectus. The Company is duly
registered and qualified to do business as a foreign corporation in good
standing in each jurisdiction where the character, location, ownership or
leasing of its properties (owned, leased or licensed) or the nature or conduct
of its business requires such registration or qualification, except where the
failure to be so qualified would not, individually or in the aggregate, result
in a material adverse effect on or affecting the business, operations, assets,
properties, condition (financial or other), stockholders' equity, or results of
operations of the Company and its subsidiaries taken as a whole (a "Material
Adverse Effect").
(e) There are no legal or governmental proceedings pending
against the Company or any Subsidiary or, to the knowledge of the Company,
threatened against any of them or to which the Company or any Subsidiary or to
which any of the respective properties of the Company or any Subsidiary is
subject which are not disclosed in the Registration Statement, the preliminary
prospectus and the Prospectus and which, if adversely decided, would cause a
Material Adverse Effect or materially adversely affect the issuance of the
Securities or the consummation of any of the transactions contemplated by this
Agreement. There are no agreements, contracts, indentures, leases or other
instruments of the Company or any Subsidiary that are material to the Company
and the Subsidiaries, taken as a whole, which are not described in the
Registration Statement, the preliminary prospectus and the Prospectus, neither
the Company nor any Subsidiary is involved in any strike, job action or labor
dispute with any group of its employees which would reasonably be expected to
have a Material Adverse Effect, and, to the knowledge of the Company, no such
action or dispute is threatened.
(f) Ernst & Young LLP, the accountants who have expressed their
opinion with respect to the financial statements (including the related notes
and supporting schedules) of the Company filed with the Commission as a part of
the Registration Statement, the preliminary prospectus and the Prospectus, are,
with respect to the Company and the Unconsolidated Subsidiary, independent
public accountants as required by the Act and the Exchange Act.
(g) The financial statements of the Company, together with the
related notes thereto, which are incorporated by reference into the Registration
Statement, the preliminary prospectus and the Prospectus, present fairly the
financial position and the results of operations, changes in stockholders'
equity and changes in cash flows of the Company as of the respective dates and
for the respective periods specified therein. All of such financial statements
and related notes have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved and comply as to form in all material respects with the applicable
accounting requirements included in Regulation S-X under the Act. [The
supporting schedules, the "Summary Financial Data", the "Selected Financial
Data" and the tables included in the Registration Statement, the preliminary
prospectus and the Prospectus fairly present the information purported to be
shown thereby at the respective dates thereof and for the respective periods
covered thereby and have been presented on a basis consistent with that of the
audited financial statements therein. No other financial statements or
supporting schedules are required by the Act or Regulation S-X to be included
therein.]
(h) Subsequent to the respective dates as of which information is
given in the Registration Statement, the preliminary prospectus and the
Prospectus, there has not been (i) any loss or adverse change, or any
development which could reasonably be expected to result in a loss or adverse
change, in or affecting the business, properties, management, assets, prospects,
stockholders' equity, operations, condition (financial or other), or results of
operations of the Company and its subsidiaries taken as a whole, (ii) any
transaction entered into by each of the Company and the Subsidiaries, except
transactions in the ordinary course of business; (iii) any obligation, direct or
contingent, incurred by each of the Company and the Subsidiaries which is
material to each of the Company and the Subsidiaries taken as a whole, except
for liabilities or obligations which are reflected in the Registration
Statement, the preliminary prospectus or the Prospectus, (iv) any change in the
capital stock or outstanding indebtedness of the Company, or (v) any dividend or
distribution of any kind declared, paid or made on the capital stock of the
Company, which in any case described in clauses (i), (ii), (iii), (iv) or (v)
above, could reasonably be expected to, individually or in the aggregate, have a
Material Adverse Effect on the Company and its subsidiaries taken as a whole or
materially and adversely affect the ability of the Company to perform its
obligations under this Agreement.
(i) Each of the Company and the Subsidiaries has good and
marketable title to all property (real and personal) described in the
Registration Statement, the preliminary prospectus and the Prospectus as being
owned by it, free and clear of all liens, claims, security interests or other
encumbrances, except such as are described in the Registration Statement, the
preliminary prospectus and the Prospectus or could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect, and all the property
described in the Registration Statement, the preliminary prospectus and the
Prospectus as being held under lease by each of the company and the Subsidiaries
is held by it under valid, subsisting and enforceable leases, except as the
enforcement thereof may be limited by bankruptcy, insolvency, or similar laws
affecting the enforcement of creditors' rights generally and subject to the
applicability of general principles of equity.
(j) The Company has all the requisite corporate power and
authority to execute, deliver and perform its obligations under this Agreement;
the execution and delivery of, and the performance by the Company of its
obligations under this Agreement have been duly and validly authorized by the
Company and this Agreement, as of the Closing Date, will have been duly executed
and delivered by the Company and will constitute the valid and legally binding
agreement of the Company, enforceable against the Company in accordance with its
terms, except as the enforcement hereof may be limited by bankruptcy, insolvency
or other similar laws affected the enforcement of creditors' rights generally
and subject to the applicability of general principles of equity, and except as
rights to indemnity and contribution hereunder may be limited by Federal or
state securities laws of principles of public policy.
(k) Each of the Company and the Subsidiaries has such permits,
licenses, franchises, certificates of need and other approvals or authorizations
of governmental or regulatory authorities ("Permits") as are necessary under
applicable law to own their respective properties and to conduct their
respective businesses in the manner described in the Registration Statement,
preliminary prospectus and Prospectus, except to the extent that the failure to
have such Permits could not reasonably be expected to have a Material Adverse
Effect; each of the Company and the Subsidiaries has fulfilled and performed in
all material respects all of its obligations with respect to the Permits, and,
to the knowledge of the Company, 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 such
Permit, subject in each case to such qualification as may be set forth in the
Registration Statement, the preliminary prospectus and the Prospectus and except
to the extent that any such revocation or termination, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
(l) None of the Company or any Subsidiary is (i) in violation of
its certificate of incorporation, as amended, or articles of organization, as
amended, or bylaws or other organizational documents or of any law, ordinance,
administrative or governmental rule or regulation applicable to it or of any
decree of any court or governmental agency or body having jurisdiction over it,
except where any such violation or violations in the aggregate could not
reasonably be expected to have a Material Adverse Effect, or (ii) in default in
the performance of any obligation, agreement or condition contained in any bond,
debenture, note or any other evidence of indebtedness or in any agreement,
indenture, lease or other instrument to which the Company or any Subsidiary is a
party or by which any of them or any of their respective properties may be
bound, except as disclosed in the Registration Statement, preliminary prospectus
and Prospectus or where any such default or defaults in the aggregate would not
reasonably be expected to have a Material Adverse Effect.
(m) Each of the Company and the Subsidiaries owns, possesses,
licenses or possesses adequate rights to use all patents, trademarks, trademark
registrations, service marks, service xxxx registrations, tradenames,
copyrights, licenses, inventions, trade secrets and rights described in the
Registration Statement, preliminary prospectus and Prospectus as being owned by
it or necessary for the conduct of its business, and that the Company has not
received a claim to the contrary (a "Claim") or any challenge (a "Challenge") by
any other person to the rights of each of the Company and the Subsidiaries with
respect to the foregoing, except for such Claims and Challenges which could not
reasonably be expected to have a Material Adverse Effect.
(n) Except as disclosed in the Registration Statement,
preliminary prospectus and Prospectus, the Company and the Subsidiaries have
filed all tax returns required to be filed (other than filings being contested
in good faith), which returns are true and correct in all material respects, and
neither of the Company nor any Subsidiary is in default in the payment of any
taxes which were payable pursuant to said returns or any assessments with
respect thereto (other than taxes being contested in good faith), except where
the failure to file such returns and make such payments (whether or not being
contested in good faith) would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(o) Except as disclosed in the Company's filings with the
Commission, none of the properties owned, operated or used by the Company has
suffered a release of any Hazardous Materials that, under any Environmental Law,
(i) would impose liability on the Company that is likely to have a Material
Adverse Effect or (ii) is likely to result in the imposition of a lien on any
assets owned, directly or indirectly, by the Company. To the Company's
knowledge, it is in compliance with, and is not subject to any existing, pending
threatened impending litigation, proceeding, claim or demand by any governmental
agency or authority or other person with respect or pursuant to any
Environmental Law, except any which, if adversely determined would not have a
Material Adverse Effect. As used herein, "Environmental Laws" means the common
law and all federal, state, local and foreign laws, codes and ordinances
relating to the environment, health and safety and all rules and regulations
promulgated thereunder, including, without limitation laws relating to
emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances or wastes
into the environment (including, without limitation, air, surface water, ground
water, land surface or subsurface strata) or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, chemicals, or industrial,
solid, toxic or hazardous substances or wastes; and "Hazardous Material"
includes, without limitation, (i) all substances which are designated pursuant
to section 311(b)(2)(A) of the Federal Water Pollution Control Act ("FWPCA"), 33
U.S.C. ss. 1251 ET. SEQ.; (ii) any element, compound, mixture, solution, or
substance which is designated pursuant to Section 102 of the Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. ss.
9601 ET. SEQ.; (iii) any hazardous waste having the characteristics which are
identified under or listed pursuant to Section 3001 of the Resource Conservation
and Recovery Act ("RCRA"), 42 U.S.C. ss. 6901 ET. SEQ.; (iv) any toxic pollutant
listed under Section 307(a) of FWPCA; (v) any hazardous air pollutant which is
listed under Section 7 of the Toxic Substances Control Act, 15 U.S.C. ss. 2601
ET. SEQ.; and (vii) petroleum, petroleum products, petroleum by-products,
petroleum decomposition by-products, and waste oil, and any other substances or
wastes subject to regulation under Environmental Laws.
(p) In the ordinary course of its business, the Company and its
Subsidiaries periodically review the effect of Environmental Laws (as defined
below) on the business, operations and properties of it and its subsidiaries, in
the course of which it identifies and evaluates 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 review,
the Company has reasonably concluded that such associated costs and liabilities
would not, singly or in the aggregate, have a Material Adverse Effect.
(q) None of the Company or the Subsidiaries has any liability for
any prohibited transaction or funding deficiency or any complete or partial
withdrawal liability with respect to any pension, profit sharing or other plan
which is subject to the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), to which the Company or any of the Subsidiaries makes or ever
has made a contribution and in which any employee of the Company or any
Subsidiary is or has ever been a participant. With respect to such plans, the
Company and each Subsidiary is in compliance in all material respects with all
applicable provisions of ERISA.
(r) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions of
the Subsidiaries are executed in accordance with management's general or
specific authorization, (ii) transactions are appropriately recorded to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets, (iii) access to
assets is permitted only in accordance with management's general or specific
authorization, (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(s) None of (i) the issuance, offer, sale or delivery of the
Securities, (ii) the execution, delivery or performance of this Agreement by the
Company, or (ii) the consummation by the Company of the transactions
contemplated hereby (a) requires any consent, approval, registration,
authorization or other order of, or registration or filing with (each, a
"Consent"), any court, regulatory body, administrative agency or other
governmental body, agency or official (except for compliance with the securities
or Blue Sky laws of various jurisdictions or the failure to obtain which could
not reasonably be expected to have a Material Adverse Effect or materially
adversely affect the consummation of the transactions contemplated hereby) or
conflicts or will conflict with or constitutes or will constitute a breach of,
or a default under , the certificate or articles of incorporation or bylaws, or
other organizational documents, of the Company or any Subsidiary, except any
such conflicts and breaches that in the aggregate could not reasonably be
expected to have a Material Adverse Effect or (ii) conflicts or will conflict
with or constitutes or will constitute a breach of or a default under, any
agreement, indenture, lease or other instrument to which the Company or any
Subsidiary is a party or by which any of them or any of their respective
properties may be bound, except as disclosed in the Registration Statement,
preliminary prospectus and the Prospectus or any such conflicts, breaches or
defaults that in the aggregate could not reasonably be expected to have a
Material Adverse Effect, or (iii) violates or will violate any statute, law,
regulation or judgment, injunction, order or decree applicable to the Company or
any Subsidiary or any of their respective properties, except any such violations
that in the aggregate could not reasonably be expected to have a Material
Adverse Effect, or (iv) will result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
Subsidiary pursuant to the terms of any agreement or instrument to which any of
them is a party or by which any of them may be bound or to which any of their
property or assets is subject, other than as disclosed in the Registration
Statement, preliminary prospectus and Prospectus or which could not in the
aggregate be expected to have a Material Adverse Effect.
(t) The Company has duly and validly authorized the sale of the
Securities and when executed and authenticated in accordance with the terms of
the Indenture and delivered the Securities will constitute valid and binding
obligations of the Company entitled to the benefits of the Indenture (subject,
as to enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or other similar laws affecting
the rights of creditors now or hereinafter in effect, and to equitable
principles that may limit the right to specific enforcement of remedies, and
further subject to the application of principles of public policy). The
description of the Securities in the Registration Statement, the preliminary
prospectus and the Prospectus is accurate in all material respects.
(u) The Company is not now, and as a result of the offer and sale
of the Securities in the manner contemplated in this Agreement, the Registration
Statement, the preliminary prospectus and the Prospectus and the application of
the net proceeds of such sale as described in the section entitled "Use of
Proceeds" of the Registration Statement, the preliminary prospectus and the
Prospectus, will not be, an "investment company" or an "affiliated person" of,
or "promoter" or "principal underwriter" for, an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the "Investment
Company Act"), without taking account of any exemption arising out of the number
or type of holders of the Company's securities.
(v) None of the Company, the Subsidiaries or any agent acting on
their behalf has taken or will take any action that might cause this Agreement
or the sale of the Securities to violate Regulation T, U or X of the Board of
Governors of the Federal Reserve System, in each case as in effect, or as the
same may hereafter be in effect, on the date hereof.
(w) None of the Company nor any of its affiliates (as defined in
Rule 501(b) of Regulation D ("Regulation D") under the Act) has directly, or
through any agent taken any action designed to cause or to result in or that has
constituted, or might reasonably be expected to cause or result in or
constitute, under the Exchange Act, or otherwise, the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Securities.
(x) The Company has not distributed and will not distribute prior
to the later of (A) the Additional Closing Date and (B) the completion of the
distribution of the Securities by the Underwriters and dealers, any offering
material (including, without limitation, content on its Website, if any, that
may be deemed to be offering material) in connection with the offering and sale
of the Securities other than the preliminary prospectus and the Prospectus.
(y) No holder of any security of the Company, which by reason of
the filing of the Registration Statement or otherwise in connection with the
sale of the Securities contemplated hereby, has the right to request or demand
registration of any security of the Company because of the transactions
contemplated hereby.
(z) Except as disclosed in the Registration Statement, the
preliminary prospectus and the Prospectus, subsequent to the date as of which
such information is given in the Registration Statement, the preliminary
prospectus or the Prospectus, neither the Company nor any Subsidiary has
incurred any liability or obligation direct or contingent, or entered into any
transaction, not in the ordinary course of business, that is material to the
Company and the Subsidiaries, taken as a whole, and there has not been any
material change in the capital stock, or material increase in the short-term or
long-term debt of the Company or any Subsidiary.
(aa) Neither the Company nor any Subsidiary nor, to the knowledge
of the Company, any employee or agent of the Company or any Subsidiary has made
any payment of funds or received or retained any funds in violation of any law,
rule or regulation, which violation could reasonably be expected to have a
Material Adverse Effect.
(bb) The Common Stock is registered pursuant to Section 12(g) of
the Exchange Act and is quoted on the New York Stock Exchange, and the Company
has taken no action designed to, or likely to have the effect of, terminating
the registration of the Common Stock under the Exchange Act or delisting the
Common Stock from the New York Stock Exchange, nor has the Company received any
notification that the Commission or the New York Stock Exchange is contemplating
terminating such registration or listing.
(cc) The Company has timely and properly filed with the
Commission all reports and other documents required to have been filed by it
with the Commission pursuant to the Act, the Regulations, the Exchange Act and
the rules and regulations. True and complete copies of all such reports and
other documents have been delivered to you or your counsel.
(dd) Except as described in the Registration Statement, the
preliminary prospectus and the Prospectus, and except in connection with
exercises of outstanding options and warrants, the Company has not sold or
issued any shares of capital stock within the six month period preceding the
date of the Prospectus, all of which sales and issuances were made in compliance
with the Act and the Regulations.
(ee) The Company meets the requirements for use of Form S-3 under
the Regulations.
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 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 make Delayed Delivery Contracts in all cases
where sales of Contract Securities arranged by the Underwriters have been
approved by the Company but, except as the Company may otherwise agree, each
such Delayed Delivery Contract must be for not less than the minimum principal
amount set forth in 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, 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 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 in the manner set forth in Schedule I hereto. Unless otherwise
agreed, certificates for the Underwriters' Securities shall be in the form set
forth in Schedule I hereto, and such certificates may be deposited with The
Depository Trust Company ("DTC") or a custodian of DTC and registered in the
name of Cede & Co., as nominee for DTC.
4. AGREEMENTS. The Company agrees with the several Underwriters that:
(a) 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) 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
to be filed with the Commission pursuant to Rule 424 or Rule 434 via the
Electronic Data Gathering, Analysis and Retrieval System. The Company will
advise the Representatives promptly (i) when the Final Prospectus shall have
been filed with the Commission pursuant to Rule 424 or Rule 434, (ii) when any
amendment to the Registration Statement relating to the Securities shall have
become effective, (iii) of any request by the Commission for any amendment of
the Registration Statement or amendment of or supplement to the Final Prospectus
or for any additional information, (iv) 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 (v) 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.
(b) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, except with respect to any such
delivery requirement imposed upon an affiliate of the Company in connection with
any secondary market sales, any event occurs as a result of which the Final
Prospectus as then amended or supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein in light of the circumstances under which they were made not
misleading, or if it shall be necessary to amend or supplement the Final
Prospectus to comply with the Act or the Exchange Act or the respective rules
thereunder, the Company promptly will prepare and file with the Commission,
subject to the first sentence of paragraph (a) of this Section 4, an amendment
or supplement which will correct such statement or omission or an amendment
which will effect such compliance.
(c) The Company will make generally available to its security
holders and to the Representatives as soon as practicable, but not later than 60
days after the close of the period covered thereby, an earnings statement (in
form complying with the provisions of Rule 158 of the regulations under the Act)
covering a 12 month period beginning not later than the first day of the
Company's fiscal quarter next following the "effective date" (as defined in said
Rule 158) of the Registration Statement.
(d) The Company will furnish to the Representatives and counsel
for the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Closing Date 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
amendments thereof and supplements thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing all documents relating to
the offering.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the Representatives
may reasonably 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; provided, however, that the Company shall not be required to qualify
to do business in any jurisdiction where it is not now so qualified or to take
any action which would subject it to general or unlimited service of process of
any jurisdiction where it is not now so subject.
(f) Until the business day following the Closing Date, the
Company will not, without the consent of the Representatives, offer or sell, or
announce the offering of, any securities covered by the Registration Statement
or by any other registration statement filed under the Act; provided, however,
the Company may, at any time, offer or sell or announce the offering of any
securities (A) covered by a registration statement on Form S-8 or (B) covered by
a registration statement on Form S-3 and (i) pursuant to which the Company
issues securities under one of the Company's medium-term note programs or (ii)
pursuant to which the Company issues securities for its dividend reinvestment
plan.
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 date hereof, as of the date of the effectiveness of
any amendment to the Registration Statement filed prior to the Closing Date
(including the filing of any document incorporated by reference therein) and as
of 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) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been issued and
no proceedings for that purpose shall have been instituted or threatened; and
the Final Prospectus shall have been filed or mailed for filing with the
Commission within the time period prescribed by the Commission.
(b) The Company shall have furnished to the Representatives the
opinion of Stroock & Stroock & Xxxxx LLP, counsel for the Company, dated the
Closing Date, to the effect of paragraphs (i) through (xii) below:
(i) the Company is a duly organized and validly existing
corporation in good standing under the laws of the State of Delaware and has the
corporate power and authority to own its properties and conduct its business as
described in the Final Prospectus;
(ii) each of the Company and the Subsidiaries is qualified
or licensed to do business as a foreign corporation in any jurisdiction in which
such counsel has knowledge that each of the Company or the Subsidiaries is
required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock of each of
the Company and the Subsidiaries have been duly and validly authorized and
issued and are fully paid and nonassessable;
(iv) the Securities conform in all material respects to the
description thereof contained in the Final Prospectus;
(v) the Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust Indenture Act,
and 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, fraudulent
conveyance or other similar laws affecting the rights of creditors now or
hereafter in effect, and to equitable principles that may limit the right to
specific enforcement of remedies, and further subject to 12 U.S.C.
ss.1818(b)(6)(D) and similar bank regulatory powers and to the application of
principles of public policy); and the Securities have been duly authorized and,
when executed and authenticated in accordance with the provisions of the
Indenture and delivered to and 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 (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium,
fraudulent conveyance or other similar laws affecting the rights of creditors
now or hereafter in effect, and to equitable principles that may limit the right
to specific enforcement of remedies);
(vi) such counsel is without knowledge that (1) there is any
pending or threatened action, suit or proceeding before or by 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, or (2) any 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 to the Registration Statement, is not so described or
filed as required;
(vii) the Registration Statement has become effective under
the Act; such counsel is without knowledge that any stop order suspending the
effectiveness of the Registration Statement has been issued or any proceedings
for that purpose have been instituted or threatened; and the Registration
Statement, the Final Prospectus and each amendment thereof or supplement thereto
(other than the financial statements and other financial and statistical
information contained therein or incorporated by reference 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;
(viii) this Agreement and any Delayed Delivery Contracts
have been duly authorized, executed and delivered by the Company and each
constitutes a legal, valid and binding agreement of the Company enforceable
against the Company in accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium,
fraudulent conveyance or other similar laws affecting the rights of creditors
now or hereafter in effect, and to equitable principles that may limit the right
to specific enforcement of remedies, and except insofar as the enforceability of
the indemnity and contribution provisions contained in this Agreement may be
limited by federal and state securities laws, and further subject to the
application of principles of public policy);
(ix) no consent, approval, authorization or order of any
court or governmental agency or body is required on behalf of the Company for
the consummation of the transactions contemplated herein or in any Delayed
Delivery Contracts, except such as have been obtained under the Act and such as
may be required under the blue sky or insurance 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;
(x) neither 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 of, or constitute a default under the
certificate of incorporation or by-laws of the Company or (1) the terms of any
material indenture or other agreement or instrument known to such counsel and to
which the Company or the Subsidiaries is a party or bound, or (2) any order or
regulation known to such counsel to be applicable to the Company or the
Subsidiaries of any court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Company or the Subsidiaries;
(xi) such counsel is without knowledge of rights to the
registration of securities of the Company under the Registration Statement which
have not been waived by the holders of such rights or which have not expired by
reason of lapse of time following notification of the Company's intention to
file the Registration Statement.
In rendering such opinion, but without opining in connection
therewith, such counsel shall also state that, although it has not independently
verified, is not passing upon and assumes no responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, it has no reason to believe that the Registration Statement or any
amendment thereof at the time it became effective and as of the date of such
opinion 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, in light of the circumstances under which they were made,
not misleading or that the Final Prospectus, as amended or supplemented, as of
its date and the date of such opinion, contains any untrue statement of a
material fact 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 rendering such opinion, such counsel may rely (A) 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 Corporate Law 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 (B) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of the Company and its
subsidiaries and public officials.
(c) The Representatives shall have received from __________,
counsel for the Underwriters, 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 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.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board and Chief
Executive Officer or a Senior Vice 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 and this Agreement and they are without
knowledge that:
(i) the representations and warranties of the Company in
this Agreement are not 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 not 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) any stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued or any proceedings for that
purpose have been instituted or threatened; and
(iii) since the date of the most recent financial statements
included in the Final Prospectus, there has been any material adverse change in
the condition (financial or other), 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.
(e) At the Closing Date, Ernst & Young LLP shall have furnished
to the Representatives a letter or 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 the response, if any, to Item 10 of the Registration Statement
is correct insofar as it relates to them and stating in effect that:
(i) They are independent accountants within the meaning of
the Act and the Exchange Act and the respective applicable published rules and
regulations thereunder.
(ii) In their opinion, the consolidated financial statements
of the Company and its subsidiaries audited by them and included or incorporated
by reference in the Registration Statement and Final Prospectus comply as to
form in all material respects with the applicable accounting requirements of the
Act and the regulations thereunder with respect to registration statements on
Form S-3 and the Exchange Act and the regulations thereunder.
(iii) On the basis of procedures (but not an audit in
accordance with generally accepted auditing standards) consisting of:
(a) Reading the minutes of the meetings of the stockholders, the board
of directors, executive committee and audit committee of the Company
and the boards of directors and executive committees of its
subsidiaries as set forth in the minute books through a specified date
not more than five business days prior to the date of delivery of such
letter;
(b) Performing the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial
information as described in SAS No. 71, Interim Financial Information,
on the unaudited condensed consolidated interim financial statements
of the Company and its consolidated subsidiaries included or
incorporated by reference in the Registration Statement and Final
Prospectus and reading the unaudited interim financial data, if any,
for the period from the date of the latest balance sheet included or
incorporated by reference in the Registration Statement and Final
Prospectus to the date of the latest available interim financial data;
and
(c) Making inquiries of certain officials of the Company who have
responsibility for financial and accounting matters regarding the
specific items for which representations are requested below;
nothing has come to their attention as a result of the foregoing procedures that
caused them to believe that:
(1) the unaudited condensed consolidated interim financial
statements, included or incorporated by reference in the
Registration Statement and Final Prospectus, do not comply
as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the
published rules and regulations thereunder;
(2) any material modifications should be made to the
unaudited condensed consolidated interim financial
statements, included or incorporated by reference in the
Registration Statement and Final Prospectus, for them to be
in conformity with generally accepted accounting principles;
(3) (i) at the date of the latest available interim
financial data and at the specified date not more than five
business days prior to the date of the delivery of such
letter, there was any change in the capital stock or the
long-term debt (other than scheduled repayments of such
debt) or any decreases in shareholders' equity of the
Company and the subsidiaries on a consolidated basis as
compared with the amounts shown in the latest balance sheet
included or incorporated by reference in the Registration
Statement and the Final Prospectus or (ii) for the period
from the date of the latest available financial data to a
specified date not more than five business days prior to the
delivery of such letter, there was any change in the capital
stock or the long-term debt (other than scheduled repayments
of such debt) or any decreases in shareholders' equity of
the Company and the subsidiaries on a consolidated basis,
except in all instances for changes or decreases which the
Registration Statement and Prospectus discloses have
occurred or may occur, or Ernst & Young LLP shall state any
specific changes or decreases.
(iv) The letter shall also state that Ernst & Young LLP has
carried out certain other specified procedures, not constituting an audit, with
respect to certain amounts, percentages and financial information which are
included or incorporated by reference in the Registration Statement and Final
Prospectus and which are specified by the Representatives and agreed to by Ernst
& Young LLP, and has found such amounts, percentages and financial information
to be in agreement with the relevant accounting, financial and other records of
the Company and its subsidiaries identified in such letter.
In addition, at the time this Agreement is executed, Ernst & Young LLP
shall have furnished to the Representatives a letter or letters, dated the date
of this Agreement, in form and substance satisfactory to the Representatives, to
the effect set forth in this paragraph (e) and in Schedule I hereto.
(f) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, 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 earnings, 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 the delivery of the Securities as
contemplated by the Registration Statement and the Final Prospectus.
(g) 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.
(h) 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 their counsel, 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.
6. PAYMENT OF EXPENSES. The Company will pay all expenses incident to
the performance of its obligations under this Agreement, including (i) the
printing and filing of the Registration Statement as originally filed and of
each amendment thereto, (ii) the copying of this Agreement, (iii) the
preparation, issuance and delivery of the Securities to the Underwriters,
including capital duties, stamp duties and stock transfer taxes, if any, payable
upon issuance of any of the Securities and the sale of the Securities to the
Underwriters, (iv) the fees and disbursements of the Company's counsel and
accountants, (v) the qualification of the Securities under state securities laws
in accordance with the provisions of Section 4(e), including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey, (vi)
the printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto, of the preliminary
prospectuses, and of the Prospectuses and any amendments or supplements thereto,
(vii) the printing and delivery to the Underwriters of copies of the Blue Sky
Survey, and (viii) the fee of the National Association of Securities Dealers,
Inc.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless 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 as
originally filed or in any amendment thereof, or arise out of or are based upon
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Prospectus, or any amendment or supplement
thereof, or arise out of or are based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, and agrees to reimburse each such indemnified party 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 (i) 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 use in connection with the preparation
thereof, or arises out of or is based upon statements in or omissions from that
part of the Registration Statement which shall constitute the Statement of
Eligibility and Qualification of the Trustee (Form T-1) under the Trust
Indenture Act of the Trustee, and (ii) such indemnity with respect to the Basic
Prospectus or any Preliminary Final Prospectus shall not inure to the benefit of
any Underwriter (or any person controlling such Underwriter) from whom the
person asserting any such loss, claim, damage or liability purchased the
Securities which are the subject thereof if such person did not receive a copy
of the Final Prospectus (or the Final Prospectus as amended or supplemented)
excluding documents incorporated therein by reference at or prior to the
confirmation of the sale of such Securities to such person in any case where
such delivery is required by the Act and the untrue statement or omission of a
material fact contained in the Basic Prospectus or any Preliminary Final
Prospectus was corrected in the Final Prospectus (or the Final Prospectus as
amended or supplemented). This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally 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 use in the preparation of 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 statements set forth in the language on the cover page required by Item
509 of Regulation S-K and under the heading "Underwriting" or "Plan of
Distribution" in any Preliminary Final Prospectus or the Final Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in the documents referred to in the foregoing
indemnity, and you, as the Representatives, confirm that such statements are
correct.
(c) Promptly after receipt by an indemnified party under this
Section 7 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 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 7. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and, to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided, however, that if the defendants in 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, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by the
Representatives in the case of subparagraph (a), representing the indemnified
parties under subparagraph (a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section 7 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company on the grounds of policy or otherwise,
the Company and the Underwriters shall contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) to which the
Company and one or more of the Underwriters may be subject in such proportion so
that the Underwriters are responsible for that portion represented by the
percentage that the underwriting discount bears to the sum of such discount and
the purchase price of the Securities specified in Schedule I hereto and the
Company is responsible for the balance; provided, however, that (y) 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 applicable to the Securities
purchased by such Underwriter hereunder and (z) 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 7, each person who controls an
Underwriter within the meaning of the Act 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 clause (y) of this paragraph (d). Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this paragraph
(d), notify such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any other obligation it or
they may have hereunder or otherwise than under this paragraph (d).
8. 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 II hereto bear 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 II 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 8, the Closing Date shall be postponed for such period, not exceeding
seven 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 defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
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 (i) 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, (ii)
a banking moratorium shall have been declared by Federal authorities or (iii)
there shall have occurred any outbreak or material escalation of hostilities or
other calamity or crisis the effect of which on the financial markets of the
United States is such as to make it, in the judgment of the Representatives,
impracticable to market the Securities.
10. 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 7 hereof,
and will survive delivery of and payment for the Securities. The provisions of
Section 6 and 7 hereof and this Section 10 shall survive the termination or
cancellation of this Agreement.
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, with a copy to: [ ]; or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at AMETEK, Inc., 00 Xxxxx
Xxxxxx Xxxx, Xxxxx, Xxxxxxxxxxxx 00000, with a copy to: Stroock & Stroock &
Xxxxx LLP, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxx X. Xxxxxxx,
Esq.
12. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
13. APPLICABLE LAW. This Agreement will be governed by and construed
in accordance with the internal laws of the State of New York, without giving
effect to principles of conflict of laws.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
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,
AMETEK, INC.
By:
----------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
By: [Name of Representatives]
By:
---------------------------
Name:
Title:
SCHEDULE I
Underwriting Agreement dated _______
Registration Statement No. 333-
Representatives:
Address of Representatives:
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include type of funds, if applicable): ____________ in
federal (same day) funds or wire transfer to an account previously
designated to the Representatives by the Company, or if agreed to by
the Representatives and the Company, by certified or official bank
check or checks.
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location: _________
Listing:
Delayed Delivery Arrangements:
Additional items to be covered by the letter from
Ernst & Young LLP delivered pursuant to
Section 5(e) at the time this
Agreement is executed: ___________________
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
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SCHEDULE III
SUBSIDIARIES
SCHEDULE IV
DELAYED DELIVERY CONTRACT
[Date]
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from AMETEK Inc. (the
"Company"), and the Company agrees to sell to the undersigned, on _____, 20__ ,
(the "Delivery Date"), $ ____ principal amount of the Company's _____ (the
"Securities") offered by the Company's Final Prospectus dated ______, 20__ ,
receipt of a copy of which is hereby acknowledged, at a purchase price of __% of
the principal amount thereof, plus accrued interest, if any, thereon from
______, 20__, 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 A.M. 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 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 (1) 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 (2) 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 Final Prospectus 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 the 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 first above written,
when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance with
the internal laws of the State of New York, without giving effect to principles
of conflict of laws.
Very truly yours,
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(Name of Purchaser)
By:
----------------------------
(Signature and Title of Officer)
----------------------------
(Address)
Accepted:
AMETEK, INC.
By:
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(Authorized Signature)
