Exhibit 1.2
POLAROID CORPORATION
COMMON STOCK
FORM OF UNDERWRITING AGREEMENT
New York, New York
, 1999
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Polaroid Corporation, a Delaware corporation (the "Company"), may issue
and sell from time to time its common stock, par value $1.00 per share,
registered under the registration statement[s] referred to in Paragraph 1(a)
hereof (the "Common Stock"). The Company proposes to sell to the underwriters
named in Schedule II hereto (the "Underwriters"), for whom you are acting as
representatives (the "Representative"), the number of shares of Common Stock
specified in Schedule I hereto (the "Underwritten Shares" and, individually, an
"Underwritten Share"). 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 "Representative" shall each be deemed to refer to such firm
or firms.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The
Company represents, warrants and agrees that:
(a) [A] [R]egistration statement[s] (No[s]. 333- and 333- ),
including a prospectus, with respect to the Common Stock has [have]
been prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "Act"), and the rules and
regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder and has [have] become
effective. As used in this Agreement, (i) "Registration Statement"
means [each] such registration statement, as amended and supplemented
to the date hereof [and "Registration Statements" means both such
registration statements, as amended and supplemented to the date
hereof]; (ii) "Preliminary Prospectus" means each prospectus (including
all documents incorporated therein by reference) included in that [the
most recently filed] Registration Statement, or amendments or
supplements thereof, before it became effective under the Act,
including any prospectus filed with the Commission pursuant to Rule
424(a) of the Rules and Regulations; (iii) "Basic Prospectus" means the
prospectus included in the [most recently filed] Registration
Statement; and (iv) "Prospectus" means the Basic Prospectus, together
with any prospectus amendment or supplement (including
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in each case all documents incorporated therein by reference)
specifically relating to the Underwritten Shares, as filed with the
Commission pursuant to paragraph (b) of Rule 424 of the Rules and
Regulations. The Commission has not issued any order preventing or
suspending the use of any Prospectus, and no proceedings for such
purposes have been instituted or are pending or, to the knowledge of
the Company, are contemplated by the Commission, and any request on the
part of the Commission for additional information has been complied
with.
(b) The Registration Statements and each Prospectus contain, and
(in the case of any amendment or supplement to any such document, or
any material incorporated by reference in any such document, filed with
the Commission after the date as of which this representation is being
made) will contain at all times during the period specified in
Paragraph 6(c) hereof, all statements which are required by the Act,
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and the rules and regulations of the Commission under such Acts; and
the Registration Statements and each Prospectus do not, and (in the
case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being
made) will not, at any time during the period specified in Paragraph
6(c) hereof, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading; PROVIDED that the Company
makes no representation or warranty as to information contained in or
omitted from any Registration Statement or any Prospectus in reliance
and based upon information furnished to the Company through the
Representative by or on behalf of any Underwriter.
(c) Neither the Company nor the Significant Subsidiary (as defined
in paragraph (h) hereof) is in violation of its corporate charter or
by-laws or in default under any agreement, indenture or instrument,
except for such defaults that would not result in a material adverse
change, or any development involving a material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and the
Significant Subsidiary (a "Material Adverse Effect"), otherwise than as
set forth or contemplated in the Prospectus; and the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated herein, and in the Prospectus (including the
issuance and sale of the Underwritten Shares and the use of the
proceeds from the sale thereof as described in the Prospectus under the
caption "Use of Proceeds") have been duly authorized by all necessary
corporate action and do not and 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 the Significant Subsidiary pursuant to, any material
agreement, indenture or instrument to which the Company or the
Significant Subsidiary is a party or by which any of them is bound or
to which any of their respective properties or assets is subject, nor
will such action result in a material
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violation of the corporate charter or by-laws of the Company or the
Significant Subsidiary or any order, rule or regulation of any court or
governmental agency having jurisdiction over the Company, the
Significant Subsidiary or their respective properties; and except as
required by the Act, the Exchange Act and applicable state securities
laws, no consent, authorization or order of, or filing or registration
with, any court or governmental agency is required for the execution,
delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby and thereby.
(d) Except as described in or contemplated by the Registration
Statements and the Prospectus, neither the Company nor any of its
subsidiaries has sustained any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree; and there has not been any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, except as described in
or contemplated by the Prospectus.
(e) KPMG Peat Marwick LLP ("KPMG"), whose report appears in the
Company's most recent Annual Report on Form 10-K which is incorporated
by reference in each Prospectus, are independent accountants as
required by the Act and the Rules and Regulations.
(f) On the Delivery Date (as defined in Paragraph 5 hereof), the
Underwritten Shares (i) will have been duly and validly authorized,
(ii) will be, when issued and delivered against payment therefor, as
provided in this Agreement, validly issued, fully paid and
non-assessable and (iii) will conform to the description thereof
contained in the Prospectus.
(g) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully
paid and non-assessable and conform to the description thereof
contained in the Prospectus.
(h) This Agreement has been validly authorized, executed and
delivered by the Company.
(i) The Company and the Significant Subsidiary have been duly
incorporated and are validly existing and remain subsisting
corporations under the laws of their respective jurisdictions of
incorporation, are duly qualified to do business and in good standing
as foreign corporations in each jurisdiction in which their respective
ownership of properties or the conduct of their respective businesses
require such qualification, except where the
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failure to so qualify would not have a Material Adverse Effect, and
have power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged and,
with respect to the Company, to enter into and perform its obligations
under this Agreement; and none of the subsidiaries of the Company
(other than Polaroid International B.V. (the "Significant Subsidiary"))
is a "significant subsidiary," as such term is defined in Rule 405 of
the Rules and Regulations.
(j) There is no material action, suit or proceeding before 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 the Significant Subsidiary, which is required to be
disclosed in any Prospectus (other than as disclosed therein), or which
might reasonably be expected to have a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect
the properties or assets thereof or the consummation of the
transactions contemplated in this Agreement or the performance by the
Company of its obligations hereunder.
(k) The financial statements filed as part of the Registration
Statements or included in any Preliminary Prospectus present, or (in
the case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being
made) will present at all times during the period specified in
Paragraph 6(c) hereof, fairly, the financial condition and results of
operations of the Company and its consolidated subsidiaries, at the
dates and for the periods indicated, and have been, and (in the case of
any amendment or supplement to any such document, or any material
incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being
made) will be at all times during the period specified in Paragraph
6(c) hereof, prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedules incorporated by reference in
any Prospectus present fairly in accordance with GAAP the information
required to be stated therein. The pro forma financial statements and
the related notes thereto incorporated by reference in the Registration
Statements and any Prospectus present fairly the information shown
therein, have been prepared in accordance with the Commission's rules
and guidelines with respect to pro forma financial statements and have
been properly compiled on the bases described therein, and the
assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein.
(l) The documents incorporated by reference into any Preliminary
Prospectus or Prospectus have been, and (in the case of any amendment
or supplement to any such document, or any material incorporated by
reference in any such document, filed with the
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Commission after the date as of which this representation is being
made) will be at all times during the period specified in Paragraph
6(c) hereof, prepared by the Company in conformity with the applicable
requirements of the Act and Rules and Regulations and the Exchange Act
and the rules and regulations of the Commission thereunder and such
documents have been, or (in the case of any amendment or supplement to
any such document, or any material incorporated by reference in any
such document, filed with the Commission after the date as of which
this representation is being made) will be at all times during the
period specified in Paragraph 6(c) hereof, timely filed as required
thereby.
(m) There are no contracts or other documents which are required
to be filed as exhibits to the Registration Statements by the Act or by
the Rules and Regulations, or which were required to be filed as
exhibits to any document incorporated by reference in any Prospectus by
the Exchange Act or the rules and regulations of the Commission
thereunder, which have not been filed as exhibits to the Registration
Statements or to such document or incorporated therein by reference as
permitted by the Rules and Regulations or the rules and regulations of
the Commission under the Exchange Act as required.
(n) The Company and the Significant Subsidiary have good and valid
title to all or substantially all of their respective properties.
(o) The Company is not, and upon the issuance and sale of the
Underwritten Shares as herein contemplated and the application of the
net proceeds therefrom as described in the Prospectus will not be, an
"investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of
1940, as amended (the "1940 Act").
2. PURCHASE OF THE UNDERWRITTEN SHARES BY THE UNDERWRITERS. 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, severally and
not jointly, and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at the purchase price and on the other terms set forth in
Schedule I hereto, the number of Underwritten Shares set forth opposite its name
in Schedule II hereto.
3. CONDITIONS OF THE COMPANY'S OBLIGATIONS. The Company shall not be
obligated to deliver any Underwritten Shares except upon payment for all
Underwritten Shares to be purchased pursuant to this Agreement as hereinafter
provided.
4. DEFAULTING UNDERWRITERS. If any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Underwriters, if any, shall be obligated to purchase the
Underwritten Shares which the defaulting Underwriter agreed but failed
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to purchase in the respective proportions which the number of Underwritten
Shares set forth in Schedule II hereto to be purchased by each remaining
non-defaulting Underwriter set forth therein bears to the aggregate number of
Underwritten Shares set forth therein to be purchased by all the remaining
non-defaulting Underwriters; PROVIDED that the remaining non-defaulting
Underwriters shall not be obligated to purchase any Underwritten Shares if the
aggregate number of Delivery Underwritten Shares which the defaulting
Underwriter or Underwriters agreed but failed to purchase exceeds 9.09% of the
total number of Underwritten Shares, and any remaining non-defaulting
Underwriter shall not be obligated to purchase more than 110% of the number of
Underwritten Shares set forth in Schedule II hereto to be purchased by it. If
the foregoing maximums are exceeded, the remaining non-defaulting Underwriters,
or those other underwriters satisfactory to the Representative who so agree,
shall have the right, but shall not be obligated, to purchase, in such
proportion as may be agreed upon among them, all the Underwritten Shares. If the
remaining Underwriters or other underwriters satisfactory to the Representative
do not elect to purchase the Underwritten Shares which the defaulting
Underwriter or Underwriters agreed but failed to purchase, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
Company, except that the Company will continue to be liable for the payment of
expenses as set forth in Paragraph 6(k) hereof.
Nothing contained in this Paragraph 4 shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused by
its default. If other underwriters are obligated or agree to purchase the
Underwritten Shares of a defaulting or withdrawing Underwriter, either the
Representative or the Company may postpone the Delivery Date for up to seven
full business days in order to effect any changes that in the opinion of counsel
for the Company or counsel for the Underwriters may be necessary in the
Registration Statements, any Prospectus or in any other document or arrangement.
5. DELIVERY AND PAYMENT FOR THE UNDERWRITTEN SHARES. Delivery of and
payment for the Underwritten Shares shall be made at such address, date and time
as may be specified in Schedule I hereto. This date and time are sometimes
referred to as the "Delivery Date." On the Delivery Date, the Company shall
deliver the Underwritten Shares to the Representative, for the account of each
Underwriter against payment to the Company by wire transfer of immediately
available funds to a bank account designated by the Company. Time shall be of
the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each Underwriter
hereunder. Upon delivery, the Underwritten Shares shall be in registered form
and in such denominations as may be set forth on Schedule I hereto. The
certificates representing the Underwritten Shares shall be made available for
inspection by the Representative in New York, New York not later than 2:00 P.M.,
local time, on the business day prior to the Delivery Date.
6. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees:
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(a) To furnish promptly to the Representative and to counsel for
the Underwriters a conformed copy of each Registration Statement as
originally filed and each amendment or supplement thereto filed prior
to the date hereof or relating to or covering the Underwritten Shares,
and a copy of each Prospectus filed with the Commission, including all
documents incorporated therein by reference and all consents and
exhibits filed therewith;
(b) To deliver promptly to the Representative such reasonable
number of the following documents as the Representative may request:
(i) conformed copies of the Registration Statements (excluding exhibits
other than this Agreement), (ii) each Prospectus and (iii) any
documents incorporated by reference in the Prospectus;
(c) During such period following the date hereof as, in the
opinion of counsel for the Underwriters, any Prospectus is required by
law to be delivered, to comply with the Act, the Exchange Act and the
rules and regulations under each thereof, so as to permit the
completion of the distribution of the Underwritten Shares as
contemplated in this Agreement and in each Prospectus. If at any time
when a prospectus is required by the Act to be delivered in connection
with sales of the Underwritten Shares, any event shall occur or
condition shall exist as a result of which it is necessary, in the
reasonable opinion of counsel for the Underwriters or for the Company,
to amend any Registration Statement or amend or supplement any
Prospectus in order that such Prospectus will not include any untrue
statements of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel,
at any such time to amend any Registration Statement or amend or
supplement any Prospectus in order to comply with the requirements of
the Act or the Rules and Regulations, the Company will promptly prepare
and file with the Commission, subject to paragraph (d) below, such
amendment or supplement as may be necessary to correct such statement
or omission or to make any such Registration Statement or any such
Prospectus comply with such requirements, and the Company will furnish
to the Underwriters such number of copies of such amendment or
supplement as the Underwriters may reasonably request;
(d) Prior to filing with the Commission during the period referred
to in (c) above (i) any amendment or supplement to any Registration
Statement, (ii) any Prospectus or any amendment or supplement thereto
or (iii) any document incorporated by reference in any of the foregoing
or any amendment or supplement to such incorporated document, to
furnish a copy thereof to the Representative and to counsel for the
Underwriters and not to file any document that shall have been
disapproved by the Representative;
(e) To advise the Representative promptly (i) when any
post-effective amendment to any Registration Statement relating to or
covering the Underwritten Shares becomes
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effective or any supplement to any Prospectus shall have been filed,
(ii) of any comments from the Commission or any request or proposed
request by the Commission for an amendment or supplement to any
Registration Statement (insofar as the amendment or supplement relates
to or covers the Underwritten Shares), to any Prospectus, to any
document incorporated by reference in any of the foregoing or for any
additional information, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of any Registration Statement
or any order directed to any Prospectus or any document incorporated
therein by reference or the initiation or threat of any stop order
proceeding or of any challenge to the accuracy or adequacy of any
document incorporated by reference in any Prospectus, (iv) of receipt
by the Company of any notification with respect to the suspension of
the qualification of the Underwritten Shares for sale in any
jurisdiction or the initiation or threat of any proceeding for that
purpose and (v) of the happening of any event which makes untrue any
statement of a material fact made in any Registration Statement
(insofar as such Registration Statement relates to or covers the
Underwritten Shares) or any Prospectus or which requires the making of
a change in any Registration Statement or any Prospectus in order to
make any material statement therein not misleading;
(f) If, during the period referred to in (c) above, the Commission
shall issue a stop order suspending the effectiveness of any
Registration Statement, to make every reasonable effort to obtain the
lifting of that order at the earliest possible time;
(g) As soon as practicable, to make generally available to its
security holders and to deliver to the Representative an earnings
statement, conforming with the requirements of Section 11(a) of the
Act, covering a period of at least twelve months beginning after the
latest of (i) the most recent effective date of the registration
statement relating to part of the Underwritten Shares, (ii) the
effective date of the most recent post-effective amendment to the last
Registration Statement that became effective prior to the date of this
Agreement and (iii) the date of the Company's most recent Annual Report
on Form 10-K filed with the Commission prior to the date of this
Agreement;
(h) So long as any of the Underwritten Shares are outstanding, to
furnish to the Representative copies of all reports and financial
statements furnished by the Company to each securities exchange on
which securities issued by the Company may be listed pursuant to
requirements of or agreements with such exchange or to the Commission
pursuant to the Exchange Act or any rule or regulation of the
Commission thereunder;
(i) To endeavor to qualify the Underwritten Shares for offer and
sale under the securities laws of such jurisdictions as the
Representative may reasonably request and to maintain such
qualifications in effect for as long as may be required for the
distribution of the Underwritten Shares; PROVIDED, HOWEVER, that the
Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation or as a
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dealer in securities in any jurisdiction in which it is not so
qualified or to subject itself to taxation in respect of doing business
in any jurisdiction in which it is not otherwise so subject;
(j) To use its best efforts to obtain the listing of the
Underwritten Shares on the securities exchange, if any, set forth on
Schedule I (the "Stock Exchange") on or prior to the Delivery Date and
to cause such listing to be continued so long as any amount of
Underwritten Shares remain outstanding; to furnish from time to time
any and all documents, instruments, information and undertakings that
may be necessary in order to effect such listing; and to maintain the
same until none of the Underwritten Shares is outstanding; PROVIDED
that if the Company can no longer reasonably maintain such listing, the
Company shall use its best efforts to obtain and maintain the quotation
for, or listing of, the Underwritten Shares, on such other securities
exchange or exchanges as the Company may, with the approval of the
Representative, determine;
(k) To pay the costs incident to the authorization, issuance, sale
and delivery of the Underwritten Shares and any taxes payable in that
connection; the costs incident to the preparation, printing and filing
under the Act of the Registration Statements and any amendments,
supplements and exhibits thereto; the costs incident to the
preparation, printing and filing of any document and any amendments and
exhibits thereto required to be filed by the Company under the Exchange
Act; the costs of distributing the Registration Statements as
originally filed and each amendment and post-effective amendment
thereof (including exhibits), any Preliminary Prospectus, each
Prospectus and any documents incorporated by reference in any of the
foregoing documents; the costs of printing this Agreement; the fees and
disbursements of the Company's counsel, accountants and other advisors;
the fees of the Transfer Agent and Registrar; the costs of any filings
with the National Association of Securities Dealers, Inc.; the fees and
expenses of qualifying the Underwritten Shares under the securities
laws of the several jurisdictions as provided in this paragraph and of
preparing and printing a Blue Sky Memorandum and the costs of advising
on the legality of the Common Stock for investment (including fees of
counsel to the Underwriters); the cost of listing the Underwritten
Shares on the Stock Exchange; and all other costs and expenses incident
to the performance of the Company's obligations under this Agreement;
PROVIDED that, except as provided in this paragraph and in Paragraph 10
hereof, the Underwriters shall pay their own costs and expenses,
including the fees and expenses of their counsel, any transfer taxes on
the Underwritten Shares which they may sell and the expenses of
advertising any offering of the Underwritten Shares made by the
Underwriters;
(l) Until the termination of the offering of the Underwritten
Shares, to timely file all documents, and any amendments to previously
filed documents, required to be filed by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act; and
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(m) During the period beginning on the date hereof and continuing
to the Delivery Date, without the consent of the Representative, not to
offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company with maturities longer than one year, other
than the Underwritten Shares to the Underwriters.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company shall indemnify
and hold harmless each Underwriter, its officers and employees and each person,
if any, who controls any Underwriter within the meaning of the Act, from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of Securities), to which
that Underwriter, officer, employee or controlling person may become subject,
under the Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained (A) in any Preliminary Prospectus,
the Registration Statement or the Prospectus, or in any amendment or supplement
thereto, or (B) in any blue sky application or other document prepared or
executed by the Company (or based upon any written information furnished by the
Company) specifically for the purpose of qualifying any or all of the
Underwritten Shares under the securities laws of any state or other jurisdiction
(any such application, document or information being hereinafter called a "Blue
Sky Application"), or (ii) the omission or alleged omission to state in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or in any
amendment or supplement thereto, or in any Blue Sky Application any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and shall reimburse each Underwriter and each such officer,
employee and controlling person promptly upon demand for any legal or other
expenses reasonably incurred by that Underwriter, officer, employee or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; PROVIDED, HOWEVER, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary Prospectus,
the Registration Statement or the Prospectus, or in any such amendment or
supplement, or in any Blue Sky Application in reliance upon and in conformity
with the written information furnished to the Company through the Representative
by or on behalf of any Underwriter specifically for inclusion therein and
described in Paragraph 7(e); and PROVIDED FURTHER that as to any Preliminary
Prospectus this indemnity agreement shall not inure to the benefit of any
Underwriter, its officers or employees or any person controlling that
Underwriter on account of any loss, claim, damage, liability or action arising
from the sale of Securities to any person by that Underwriter if that
Underwriter failed to send or give a copy of the Prospectus, as the same may be
amended or supplemented, to that person within the time required by the Act, and
the untrue statement or alleged untrue statement of any material fact or
omission or alleged omission to state a material fact in such Preliminary
Prospectus was corrected in the Prospectus, unless such failure resulted from
non-compliance by the Company with Paragraph 6(c). For purposes of the last
proviso to the immediately preceding sentence, the term "Prospectus" shall not
be deemed to include the
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documents incorporated therein by reference, and no Underwriter shall be
obligated to send or give any supplement or amendment to any document
incorporated by reference in any Preliminary Prospectus or the Prospectus to any
person other than a person to whom such Underwriter had delivered such
incorporated document or documents in response to a written request therefor.
The foregoing indemnity agreement is in addition to any liability which the
Company may otherwise have to any Underwriter or to any officer, employee or
controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, its officers and employees, each of its directors and
each person, if any, who controls the Company within the meaning of the Act,
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Company or any such director, officer or
controlling person may become subject, under the Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained (A) in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any amendment or supplement thereto, or (B) in any Blue Sky
Application or (ii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact required to
be stated therein or necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with the written information furnished to the Company through the
Representative by or on behalf of that Underwriter specifically for inclusion
therein and described in Paragraph 7(e), and shall reimburse the Company and any
such director, officer or controlling person for any legal or other expenses
reasonably incurred by the Company or any such director, officer or controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any liability
which any Underwriter may otherwise have to the Company or any such director,
officer or controlling person.
(c) Promptly after receipt by an indemnified party under this Paragraph
7 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Paragraph 7, notify the indemnifying party in
writing of the claim or the commencement of that action; PROVIDED, HOWEVER, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Paragraph 7 except to the extent it has
been materially prejudiced by such failure and, PROVIDED FURTHER, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Paragraph 7.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying
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party, to assume the defense thereof with counsel satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Paragraph 7 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; PROVIDED, HOWEVER, that any indemnified party shall have
the right to employ separate counsel in any such action and to participate in
the defense thereof but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the employment thereof has been
specifically authorized by the indemnifying party in writing, (ii) such
indemnified party shall have been advised by such counsel that there may be one
or more legal defenses available to it which are different from or additional to
those available to the indemnifying party and in the reasonable judgment of such
counsel it is advisable for such indemnified party to employ separate counsel or
(iii) the indemnifying party has failed to assume the defense of such action and
employ counsel reasonably satisfactory to the indemnified party, in which case,
if such indemnified party notifies the indemnifying party in writing that it
elects to employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, that the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at any
time for all such indemnified parties, which firm shall be designated in writing
by the Representative, if the indemnified parties under this Paragraph 7 consist
of any Underwriter or any of their respective officers, employees or controlling
persons, or by the Company, if the indemnified parties under this Paragraph
consist of the Company or any of the Company's directors, officers, employees or
controlling persons. No indemnifying party shall (i) 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, or (ii) be liable for any settlement
of any such action effected without its written consent (which consent shall not
be unreasonably withheld), but if settled with its written consent or if there
be a final judgment of the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss of liability by reason of such settlement or judgment.
13
(d) If the indemnification provided for in this Paragraph 7 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Paragraph 7(a) or 7(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from
the offering of the Underwritten Shares or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the
Underwriters on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other with
respect to such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Underwritten Shares purchased under
this Agreement (before deducting expenses) received by the Company, on the one
hand, and the total underwriting discounts and commissions received by the
Underwriters with respect to the shares of the Underwritten Shares purchased
under this Agreement, on the other hand, bear to the total gross proceeds from
the offering of the shares of the Underwritten Shares under this Agreement, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or the
Underwriters, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this Paragraph 7(d) were to be determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Paragraph 7(d) shall be
deemed to include, for purposes of this Paragraph 7(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Paragraph 7(d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Underwritten Shares underwritten by it and distributed to the public was
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise paid or become liable to pay by reason of any untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute as provided in
this Paragraph 7(d) are several in proportion to their respective underwriting
obligations and not joint.
14
(e) The Underwriters severally confirm that the statements with respect
to the public offering of the Underwritten Shares set forth on the cover page
of, and under the caption "Underwriting" in, the Prospectus are correct and
constitute the only information furnished in writing to the Company by or on
behalf of the Underwriters specifically for inclusion in the Registration
Statement and the Prospectus.
8. TERMINATION. (a) The obligations of the Underwriters hereunder may
be terminated by the Representative by notice given to and received by the
Company prior to delivery of and payment for the Underwritten Shares if, prior
to that time, any of the events described in Paragraphs 9(k) or 9(l) hereof
shall have occurred or if the Underwriters shall decline to purchase the
Underwritten Shares for any reason permitted under this Agreement.
(b) If this Agreement is terminated pursuant to this Paragraph 8, such
termination shall be without liability of any party to any other party except as
provided in Paragraph 10 hereof, and PROVIDED FURTHER that Paragraphs 1 and 7
shall survive such termination and remain in full force and effect.
9. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS . The respective
obligations of the Underwriters under the Agreement with respect to the
Underwritten Shares are subject to the accuracy, on the date hereof and on the
Delivery Date, of the representations and warranties of the Company contained
herein, to performance by the Company of its obligations hereunder, and to each
of the following additional terms and conditions applicable to the Underwritten
Shares.
(a) At or before the Delivery Date, no stop order suspending the
effectiveness of any Registration Statement nor any order directed to
any document incorporated by reference in any Prospectus shall have
been issued and prior to that time no stop order proceeding shall have
been initiated or threatened by the Commission and no challenge shall
have been made to the accuracy or adequacy of any document incorporated
by reference in any Prospectus; any request of the Commission for
inclusion of additional information in any Registration Statement or
any Prospectus or otherwise shall have been complied with; and after
the date hereof the Company shall not have filed with the Commission
any amendment or supplement to any Registration Statement or any
Prospectus (or any document incorporated by reference therein) that
shall have been disapproved by the Representative.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to the Delivery Date that any Registration
Statement or any Prospectus contains an untrue statement of a fact
which, in the opinion of counsel for the Underwriters, is material or
omits to state a fact which, in the opinion of such counsel, is
material and is required to be stated therein or is necessary to make
the statements therein not misleading.
15
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the
Underwritten Shares and the form of the Registration Statements, each
Prospectus (other than financial statements and other financial data)
and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be satisfactory in all respects
to counsel for the Underwriters, and the Company shall have furnished
to such counsel all documents and information that such counsel may
reasonably request to enable it to pass upon such matters.
(d) [ ], General Counsel of the Company, shall have
furnished to the Representative his opinion addressed to the
Underwriters and dated the Delivery Date to the effect that:
(i) The Company has been duly incorporated and is validly
existing and remains a subsisting corporation under the laws of
the State of Delaware;
(ii) The Company is duly qualified to do business and is in
good standing as a foreign corporation in all jurisdictions in
which its ownership of property or the conduct of its business
requires such qualification (except where the failure to so
qualify would not have a Material Adverse Effect), and has all
power and authority necessary to own its properties and conduct
the business in which it is engaged as described in the
Prospectus;
(iii) No order issued by the Commission directed to any
document incorporated by reference in any Prospectus has been
issued and, to the knowledge of such counsel, no challenge has
been made by the Commission to the accuracy or adequacy of any
such document;
(iv) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital
stock of the Company (including the Underwritten Shares being
delivered on the Delivery Date) have been duly and validly
authorized and issued, are fully paid and non-assessable;
(v) There are no preemptive or other rights to subscribe
for or to purchase, nor any restriction upon the voting or
transfer of, any Underwritten Shares pursuant to the Company's
charetr or by-laws or any agreement or other instrument known to
such counsel;
(vi) Such counsel does not know of any litigation or any
governmental proceeding pending or threatened against the Company
which would affect the subject matter of this Agreement or is
required to be disclosed in any Prospectus (including the
documents incorporated by reference therein) which is not
disclosed and correctly summarized therein; and
16
(vii) The execution, delivery and performance of this
Agreement and the issuance and delivery of the Underwritten
Shares, will not constitute a breach of, or result in the creation
or imposition of any lien, charge or encumbrance upon any of the
assets of the Company pursuant to the terms of, or constitute a
default under, any agreement, indenture or instrument known to
such counsel, or result in a violation of the charter or by-laws
of the Company or, to the best of such counsel's knowledge, any
order, rule or regulation of any court or governmental agency
having jurisdiction over the Company or its property.
In giving such opinion, such counsel need not express any opinion
regarding any order, consent or other authorization or approval which
may be legally required pursuant to any state securities law.
In rendering such opinion, such counsel may: (i) state that his
opinion is limited to matters governed by the federal laws of the
United States of America, the laws of the District of Columbia and the
General Corporation Law of the State of Delaware and that such counsel
is not admitted in the State of Delaware; and (ii) rely (to the extent
such counsel deems proper and specifies in his opinion), as to matters
involving the application of the laws of other jurisdictions upon the
opinion of other counsel of good standing, PROVIDED that such other
counsel is satisfactory to counsel for the Underwriters and furnishes a
copy of its opinion to the Representative.
(e) Boekel de Neree, special Netherlands counsel to the
Significant Subsidiary, shall have furnished to the Representative its
opinion addressed to the Underwriters and dated the Delivery Date, to
the effect that the Significant Subsidiary has been duly incorporated
and is validly existing as a private limited liability company under
the laws of The Netherlands and has the corporate power and authority
to carry on the business described in the objects clause of its
Articles of Association.
(f) Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Company, shall
have furnished to the Representative its opinion addressed to the
Underwriters and dated the Delivery Date, to the effect that:
(i) The Company has been duly incorporated and is
validly existing and in good standing as a corporation under the
laws of the State of Delaware;
(ii) The Underwritten Shares have been duly authorized
by the Company and, upon payment and delivery in accordance with
the Underwriting Agreement, the Underwritten Shares will be
validly issued, fully paid and non-assessable;
(iii) The statements made in each Prospectus under the
caption "Description of Capital Stock -- Common Stock" (or a
comparable caption), insofar as it purports
17
to constitute a summary of the documents referred to therein,
constitute accurate summary of the terms of such documents in all
material respects;
(iv) Each Registration Statement is effective under the
Act and, to the knowledge of such counsel, no stop order
suspending its effectiveness has been issued and no proceeding for
that purpose is pending or threatened by the Commission;
(v) This Agreement has been duly authorized, executed
and delivered by the Company; and
(vi) The Company is not an "investment company" or an
entity "controlled" by an "investment company," as such terms are
defined in the 1940 Act.
In rendering such opinion, such counsel may state that its opinion is
limited to matters governed by the federal laws of the United States of America,
the laws of the State of New York and the General Corporation Law of the State
of Delaware and that such counsel is not admitted in the State of Delaware.
Such counsel shall also have furnished to the Representative a written
statement, addressed to the Underwriters and dated the Delivery Date, in form
and substance satisfactory to the Representative, to the effect that (1) such
counsel has acted as counsel to the Company in connection with the preparation
of the Registration Statements and the offer and sale of the Common Stock
(although the Company is also represented by its General Counsel and, with
respect to certain other matters, by other outside counsel); (2) in the course
of the preparation by the Company of the Registration Statements and the
Prospectus, such counsel participated in conferences with certain officers and
employees of the Company, with representatives of KPMG and with counsel to the
Company; (3) prior to the Company's filing with the Commission documents under
the Exchange Act, such counsel reviewed such documents; and (4) based on (a)
such counsel's examination of the Registration Statements, the Prospectus and
the documents filed by the Company under the Exchange Act, (b) such counsel's
investigation made in connection with the preparation of Registration Statements
and the Prospectus (excluding the documents filed by the Company under the
Exchange Act) and (c) such counsel's participation in the conferences referred
to in clause (2) of this paragraph above, (i) that such counsel is of the
opinion that the Registration Statements, as of their respective effective
dates, and each Prospectus, as of its issue date, complied as to form in all
material respects with the requirements of the Act and the Rules and
Regulations, and each document incorporated by reference in each Prospectus as
filed under the Exchange Act complied as to form when filed in all material
respects with the requirements of the Exchange Act and the applicable rules and
regulations of the Commission thereunder, except that in each case no opinion
need be expressed as to the financial statements and other financial data
contained or incorporated by reference therein, and (ii) such counsel has no
reason to believe that (I) either Registration Statement, on the dates they
became effective (or, with respect to such Registration Statements, if the
Company has filed an
18
Annual Report on Form 10-K since their effective dates, the date of the
Company's most recent Annual Report on Form 10-K), contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading or that the Prospectus, as of its issue date and as of the Delivery
Date, contains any untrue statement of a material fact or omits 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 or (II) any document incorporated by reference in the Prospectus
when they were filed with the Commission contained any untrue statement of a
material fact or omitted to state any material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading, except that with respect to each of clauses (I) and (II)
above, such counsel may state that it expresses no belief with respect to the
financial statements or other financial data contained in or incorporated by
reference in the Registration Statements, the Prospectus or documents filed by
the Company under the Exchange Act. The foregoing opinion and statement may be
qualified by a statement to the effect that such counsel has not independently
verified the accuracy, completeness or fairness of the statements made or
included in the Registration Statements, the Prospectus or the documents filed
by the Company under the Exchange Act and takes no responsibility therefor,
except as and to the extent set forth in paragraph vii above.
(g) The Company shall have furnished to the Representative a
certificate, dated the Delivery Date, of its Chairman of the Board, its
President or a Vice President and its chief financial officer stating
that:
(i) The representations, warranties and agreements of
the Company in Paragraph 1 are true and correct as of the Delivery
Date; the Company has complied with all its agreements contained
herein; and the conditions set forth in Paragraph 9(a) have been
fulfilled;
(ii) (A) Except as described in or contemplated by the
Registration Statements and the Prospectus, neither the Company
nor any of its subsidiaries has sustained, any loss or
interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, or
(B) there has not been any change, or any development involving a
prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as
described in or contemplated by the Prospectus; and
(iii) They have carefully examined the Registration
Statements and the Prospectus and, in their opinion (A) the
Registration Statements, as of their respective effective dates,
and the Prospectus, as of its issue date, did not include any
untrue statement of a material fact and did not omit to state any
material fact required to be
19
stated therein or necessary to make the statements therein not
misleading, and (B) since the effective date of Registration
Statement (No. 333- ), no event has occurred which should have
been set forth in a supplement or amendment to either of the
Registration Statements or the Prospectus.
(h) (i) Neither the Company nor any of its subsidiaries shall have
sustained, except as described in or contemplated by the Registration
Statements and the Prospectus, any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, or (ii) there shall not have been
any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in clause
(i) or (ii), is, in the judgment of the Representative, so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Underwritten Shares on the terms
and in the manner contemplated in the Prospectus.
(i) The Company shall have furnished to the Representative (i) a
letter of KPMG, addressed to the Underwriters and dated the date hereof
of the type described in the American Institute of Certified Public
Accountants' Statement on Auditing Standards No. 72 and covering such
specified financial statement items as counsel for the Underwriters may
reasonably have requested and (ii) a letter of KPMG, addressed to the
Underwriters and dated the Delivery Date, stating, as of the date of
such letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than five
days prior to the date of such letter), the conclusions and findings of
such firm with respect to the financial information and other matters
covered by its letter referred to in subclause (i) above, confirming in
all material respects the conclusions and findings set forth in such
prior letter.
(j) The Underwritten Shares shall have been accepted for listing
on the Stock Exchange (if any), subject to official notice of issuance.
(k) (i) Neither the Company nor the Significant Subsidiary shall
have sustained, except as described in or contemplated by the
Registration Statements and the Prospectus, any loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree, or (ii) there shall not have
been any change, or any development involving a prospective change, in
or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and the
Significant Subsidiary, otherwise than as described in or contemplated
by the Prospectus, the effect
20
of which, in any such case described in clause (i) or (ii), is, in the
judgment of the Representative, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Underwritten Shares on the terms and in the manner
contemplated in the Prospectus.
(l) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or the American
Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter
market, shall have been suspended or minimum prices shall have been
established on any such exchange or such market by the Commission, by
such exchange or by any other regulatory body or governmental authority
having jurisdiction, (ii) a banking moratorium shall have been declared
by federal or state authorities, (iii) the United States shall have
become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States or (iv)
there shall have occurred such a material adverse change in general
economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of a majority in interest
of the several Underwriters, impracticable or inadvisable to proceed
with the public offering or delivery of the Underwritten Shares
Securities on the terms and in the manner contemplated in the
Prospectus.
All opinions, letters, evidence and certificates mentioned above
or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance
satisfactory to counsel for the Underwriters.
10. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the Company shall fail
to tender the Underwritten Shares for delivery to the Underwriters for any
reason permitted under this Agreement, or if the Underwriters shall decline to
purchase the Underwritten Shares for any reason permitted under this Agreement
(other than pursuant to Paragraph 4 hereof), the Company shall reimburse the
Underwriters for reasonable fees and expenses of their counsel and for such
other out-of-pocket expenses as shall have been incurred by them in connection
with this Agreement and the proposed purchase of Underwritten Shares and the
solicitation of any purchases of the Underwritten Shares, and upon demand the
Company shall pay the full amount thereof to the Representative. If this
Agreement is terminated pursuant to Paragraph 4 hereof by reason of the default
of one or more Underwriters, the Company shall not be obligated to reimburse any
defaulting Underwriter on account of those expenses.
11. NOTICES, ETC. The Company shall be entitled to act and rely upon
any request, consent, notice or agreement by, or on behalf of, the
Representative. Any notice by the Company to the Underwriters shall be
sufficient if given in writing or by telegraph addressed to the Representative
at its address set forth in Schedule I hereto, and any notice by the
21
Underwriters to the Company shall be sufficient if given in writing or by
facsimile addressed to the Company at 000 Xxxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000 (Facsimile Number: (000) 000-0000), Attention of the
Treasurer.
12. PERSONS ENTITLED TO THE BENEFIT OF THIS AGREEMENT. This Agreement
shall be binding upon the Underwriters, the Company, and their respective
successors. This Agreement and the terms and provisions hereof are for the sole
benefit of only those persons, except that (a) the representations, warranties,
indemnities and agreements of the Company contained in this Agreement shall also
be deemed to be for the benefit of the person or persons, if any, who control
any Underwriter within the meaning of Section 15 of the Act, and (b) the
indemnity agreement of the Underwriters contained in Paragraph 7 hereof shall be
deemed to be for the benefit of directors of the Company, officers of the
Company who have signed any Registration Statement and any person controlling
the Company. Nothing in this Agreement is intended or shall be construed to give
any person, other than the persons referred to in this Paragraph, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
13. CERTAIN DEFINITIONS. For purposes of this Agreement, (a) "business
day" means any day on which the New York Stock Exchange, Inc. is open for
trading and (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules
and Regulations.
14. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
16. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[THE REST OF THIS PAGE IS LEFT BLANK INTENTIONALLY; THE SIGNATURE PAGE FOLLOWS.]
22
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement shall represent a binding agreement among the Company and the
several Underwriters.
Very truly yours,
POLAROID CORPORATION
By
-----------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed
and accepted as of the date first above
written.
[ ]
By
----------------------------------
Name:
Title:
For itself and as Representative of the other
Underwriters named in Schedule II to the foregoing
Agreement.
SCHEDULE I
Underwriting Agreement dated , 1999.
Registration Statement No's. 333- and 333- .
Representatives and Addresses:
Title:
Number of Underwritten Shares:
Price per share:
Price to public:
Time of payment of dividends:
Stock Exchange Listing:
Delivery Date, Time and Location:
SCHEDULE II
NUMBER OF
UNDERWRITTEN
NAME OF UNDERWRITER SHARES
----------------------------------------------------------------------
............................................ $
............................................
----
Total $
----
----
