FORM OF
SOLUTIA INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
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,
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To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described
Ladies and Gentlemen:
From time to time Solutia Inc., a Delaware corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each
a "Pricing Agreement") in the form of Annex I hereto, with such
additions and deletions as the parties thereto may determine, and,
subject to the terms and conditions stated herein and therein, to issue
and sell to the firms named in Schedule I to the applicable Pricing
Agreement (such firms constituting the "Underwriters" with respect to
such Pricing Agreement and the securities specified therein) certain of
its debt securities (the "Securities") specified in Schedule II to such
Pricing Agreement (with respect to such Pricing Agreement, the
"Designated Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating
thereto and in or pursuant to the indenture (the "Indenture") identified
in such Pricing Agreement.
1. Particular sales of Designated Securities may be made from
time to time to the Underwriters of such Securities, for whom the firms
designated as representatives of the Underwriters of such Securities in
the Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single
firm acting as sole representative of the Underwriters and to
Underwriters who act without any firm being designated as their
representative. This Underwriting Agreement shall not be construed as
an obligation of the Company to sell any of the Securities or as an
obligation of any of the Underwriters to purchase the Securities. The
obligations of the Company to issue and sell any of the Securities and
the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to
the Designated Securities specified therein. Each Pricing Agreement
shall specify the aggregate principal amount of such Designated
Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities,
the names of the Representatives of such Underwriters and the
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principal amount of such Designated Securities to be purchased by each
Underwriter and shall set forth the date, time and manner of delivery of
such Designated Securities and payment therefor. The Pricing Agreement
shall also specify (to the extent not set forth in the Indenture and the
registration statement and prospectus with respect thereto) the terms of
such Designated Securities. A Pricing Agreement shall be in the form of
an executed writing (which may be in counterparts), and may be evidenced
by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters under
this Agreement and each Pricing Agreement shall be several and not
joint.
2. The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(a) A registration statement has been filed with the Securities
and Exchange Commission (the "Commission"); such registration statement
and any post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to the Representatives and, excluding
exhibits to such registration statement, but including all documents
incorporated by reference in the prospectus contained therein, to the
Representatives for each of the other Underwriters, have been declared
effective by the Commission in such form; other than a registration
statement, if any, increasing the size of the offering (a "Rule 462(b)
Registration Statement"), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Act"), which will become
effective upon filing, no other document with respect to such
registration statement or document incorporated by reference therein has
heretofore been filed with the Commission; and no stop order suspending
the effectiveness of such registration statement or the Rule 462(b)
Registration Statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in such registration statement and
incorporated by reference in the Rule 462(b) Registration Statement, if
any, or filed with the Commission pursuant to Rule 424(a) of the rules
and regulations of the Commission under the Act, being hereinafter
called a "Preliminary Prospectus"; the various parts of such
registration statement and any post-effective amendment thereto
including all exhibits thereto and the documents incorporated by
reference in the prospectus contained in the registration statement at
the time such part of the registration statement became effective but
excluding Forms T-1, each as amended at the time such part of the
registration statement became effective, or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective,
being hereinafter collectively called the "Registration Statement"; the
prospectus relating to the Securities, in the form in which it has most
recently been filed, or transmitted for filing, with the Commission on
or prior to the date of this Agreement, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under
the Act, as of the date of such Preliminary Prospectus or
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Prospectus, as the case may be; any reference to an amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after the date of
such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or the
Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to include any annual report of
the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act
after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any
reference to the Prospectus as amended or supplemented shall be deemed
to refer to the Prospectus as amended or supplemented in relation to the
applicable Designated Securities in the form in which it is filed with
the Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof, including any documents incorporated by reference
therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus, when such documents
become effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter
of Designated Securities through the Representatives expressly for use
in the Prospectus as amended or supplemented relating to such
Securities;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act") and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter
of Designated Securities through the Representatives expressly for use
in the Prospectus as amended or supplemented relating to such
Securities;
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(d) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has not been any
material change in the capital stock (other than changes in treasury
stock within limits, or pursuant to employee plans, disclosed or
incorporated by reference in the Prospectus) or increase in long-term
debt of the Company and its subsidiaries considered as a whole or any
material adverse change, or any development known to the Company
involving a prospective material adverse change, in or affecting the
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries considered as a whole, otherwise than
as set forth or contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority to own its properties and
conduct its business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction in which
it owns or leases properties or conducts any business so as to require
such qualification, other than where the failure to be so qualified or
in good standing would not have a material adverse effect on the Company
and its subsidiaries taken as a whole; and each of Monchem, Inc., a
Delaware corporation; Monchem International, Inc., a Delaware
corporation; Solutia Systems, Inc., a Delaware corporation; Solutia
International Sales, Inc., a Barbados corporation; and Solutia Europe
S.A./N.V., a Belgian corporation; Alhadar Holding B.V., a Dutch
corporation; Solutia Netherlands International B.V., a Dutch
corporation; and Solutia Deutschland Holding GmbH, a German corporation;
(each of these corporations, if at any relevant time a subsidiary of the
Company, being referred to as a "Principal Subsidiary"), has been duly
incorporated and is validly existing as a corporation in good standing
(to the extent applicable) under the laws of its jurisdiction of
incorporation;
(f) The Company has an authorized capitalization as set forth in
the Prospectus as amended or supplemented, and all of the issued shares
of capital stock of the Company have been duly and validly authorized
and issued and are fully paid and non-assessable; and all of the issued
shares of capital stock of each Principal Subsidiary of the Company have
been duly and validly authorized and issued, are fully paid and non-
assessable and (except for shares necessary to qualify directors or to
maintain any minimum number of stockholders required by law) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(g) The Securities have been duly authorized and, when
Designated Securities are validly authenticated, issued and delivered
pursuant to the Indenture, this Agreement and the Pricing Agreement with
respect to such Designated Securities, such Designated Securities will
have been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company entitled
to the benefits provided by the Indenture, which will be substantially
in the form filed as an exhibit to the Registration Statement; the
Indenture has been duly authorized by the Company and duly qualified
under the Trust Indenture Act and at each Time of Delivery for such
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Designated Securities (as defined in Section 4 hereof), the Indenture
will constitute a valid and legally binding instrument of the Company,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; and the Indenture conforms, and the Designated
Securities will conform, to the descriptions thereof contained in the
Prospectus as amended or supplemented with respect to such Designated
Securities;
(h) The issue and sale of the Securities and the compliance by
the Company with all of the provisions of the Securities, the Indenture,
this Agreement and any Pricing Agreement, and the consummation of the
transactions herein and therein contemplated, will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any of the property or assets of
the Company or any Principal Subsidiary pursuant to the terms of, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its Principal Subsidiaries is
a party or by which the Company or any of its Principal Subsidiaries is
bound or to which any of the property or assets of the Company or any of
its Principal Subsidiaries is subject, which would cause a current or
prospective material adverse change in or affecting the financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries considered as a whole or affect the validity of the
Securities or the legal authority of the Company to comply with the
Securities, the Indenture, this Agreement or any Pricing Agreement; nor
will such action result in any violation of the provisions of the
Restated Certificate of Incorporation or By-laws of the Company, or in a
violation of any statute or any order, rule or regulation of any court
or governmental agency or body in the United States having jurisdiction
over the Company or any of its Principal Subsidiaries or any of their
properties which would cause a current or prospective material adverse
change in or affecting the financial position, stockholders' equity or
results of operations of the Company and its subsidiaries considered as
a whole or affect the validity of the Securities or the legal authority
of the Company to comply with the Securities, the Indenture, this
Agreement or any Pricing Agreement (except to the extent that the issue
and sale of the Securities as contemplated by this Agreement and the
distribution of the Securities by the Underwriters may result in
violations of state securities or Blue Sky laws); and no consent,
approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the issue
and sale of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement or any Pricing Agreement or
the Indenture, except such as have been, or will have been prior to the
Time of Delivery, obtained under the Act and the Trust Indenture Act and
such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Securities
as contemplated by this Agreement and any Pricing Agreement and the
distribution of the Securities by the Underwriters;
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(i) There are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject, other
than as set forth in the Prospectus and other than those which in the
aggregate will not have a material adverse effect on the Company and its
subsidiaries considered as a whole; and, to the best of the Company's
knowledge no such proceedings are contemplated by governmental
authorities; and
(j) Deloitte & Touche, LLP, who have certified certain financial
statements of the Company and its subsidiaries, are, to the best of the
Company's knowledge, independent public accountants as to the Company as
required by the Act and the rules and regulations of the Commission
thereunder.
3. Upon the execution of the Pricing Agreement applicable to
any Designated Securities and authorization by the Representatives of
the release of such Designated Securities, the several Underwriters
propose to offer such Designated Securities for sale upon the terms and
conditions set forth in the Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in the form
specified in the Pricing Agreement, and in such authorized denominations
and registered in such names as the Representatives may request upon at
least forty-eight hours' prior notice to the Company, shall be delivered
by or on behalf of the Company to the Representatives for the account of
such Underwriter, against payment by such Underwriter or on its behalf
of the purchase price therefor by wire transfer or by certified or
official bank check, payable to the order of the Company in the funds
specified in such Pricing Agreement, all at the place and time and date
specified in such Pricing Agreement or at such other place and time and
date as the Representatives and the Company may agree upon in writing,
such time and date being herein called the "Time of Delivery" for such
Securities.
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To prepare the Prospectus as amended and supplemented in
relation to the applicable Designated Securities in a form approved by
the Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Act not later than the Commission's close of business on the
second business day following the execution and delivery of the Pricing
Agreement relating to the applicable Designated Securities or, if
applicable, such earlier time as may be required by Rule 424(b); to make
no further amendment or any supplement to the Registration statement or
Prospectus as amended or supplemented after the date of the Pricing
Agreement relating to such Securities and prior to the Time of Delivery
for such Securities which shall be reasonably disapproved by the
Representatives for such Securities promptly after reasonable notice
thereof; to advise the Representatives promptly of any such amendment or
supplement after such Time of Delivery and furnish the Representatives
with copies thereof; to file promptly all reports and any definitive
proxy or information statements required to be filed by the Company
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with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of such Securities, and during such
same period to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed, or mailed for
filing, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any prospectus relating to the
Securities, of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, of the initiation or threatening
of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the event
of the issuance of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Securities or
suspending any such qualification, to use promptly its best efforts to
obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Securities for
offering and sale under the securities laws of such United States
jurisdictions as the Representatives may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of the Securities, provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation or
to file a general consent to service of process in any jurisdiction or
to subject itself to taxation for doing business in any jurisdiction,
and provided further that the expense of maintaining any such
qualification more than one year from the date of the Pricing Agreement
shall be at the expense of the Representatives for such Securities;
(c) Prior to 12:00 noon, New York City time, or as promptly
thereafter as reasonably practicable, on the New York business day
next succeeding the date of the Pricing Agreement and from time to
time, to furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may
reasonably request, and, if the delivery of a prospectus is required
at any time prior to the expiration of nine months after the date of
the Pricing Agreement relating to the Securities in connection with the
offering or sale of the Securities and if at such time any event shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such same period to amend or supplement the
Prospectus in order to comply with the Act, the Exchange Act or the Trust
Indenture Act, to notify the Representatives and upon their request to
file such document and to prepare and furnish without charge to each
Underwriter and to any dealer participating with them in the distribution
of the Securities as many copies as the Representatives may from time to
time reasonably request of an amended Prospectus or a supplement to the
Prospectus
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which will correct such statement or omission or effect such compliance;
and in case any Underwriter or any such dealer is required to deliver a
prospectus in connection with sales of any of the Securities at any time
nine months or more after the date of the Pricing Agreement relating to
the Securities, upon the request of the Representatives but at the
expense of the Underwriters or dealer, as the case may be, to prepare
and deliver to the Representatives or dealer as many copies as the
Representatives may request of an amended Prospectus or supplement to
the Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c)), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and
the rules and regulations of the Commission thereunder (including, at
the option of the Company, Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and including
the earlier of (i) the termination of trading restrictions for such
Designated Securities, as notified to the Company by the representatives
or (ii) the Time of Delivery for such Designated Securities, not to
offer, sell, contract to sell or otherwise dispose of in the United
States any debt securities of the Company that mature more than one year
after the Time of Delivery and that are substantially similar to the
Designated Securities, without the prior written consent of the
Representatives;
(f) To use the net proceeds received by it from the sale of the
Designated Securities pursuant to this Agreement and the Pricing
Agreement relating to such Designated Securities in the manner specified
in the Prospectus applicable to the Designated Securities under the
caption "Use of Proceeds"; and
(g) If the Company elects to rely upon Rule 462(b), to file a
Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of
the Pricing Agreement relating to the Designated Securities, and at the
time of filing either to pay to the Commission the filing fee for the
Rule 462(b) Registration Statement or to give irrevocable instructions
for the payment of such fee pursuant to Rule 111(b) under the Act.
6. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's
counsel and accountants in connection with the registration of the
Securities under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and (except as otherwise
provided in Section 5(c) hereof) amendments and supplements thereto and
the mailing and delivering of copies thereof to the Underwriters and any
other dealers participating in the distribution of the Securities; (ii)
the cost of
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printing or producing any Agreement among Underwriters, this Agreement,
any Pricing Agreement, the Indenture, any Blue Sky and Legal Investment
Memoranda and any other documents in connection with the offering,
purchase, sale and delivery of the Securities; (iii) all expenses in
connection with the qualification of the Securities for offering and
sale under state securities laws as provided in Section 5(b) hereof,
including the fees (not to exceed $5,000 per fiscal year of the Company)
and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with any Blue Sky and legal
investment surveys; (iv) any fees charged by securities rating services
for rating the Securities; (v) any filing fees incident to any required
review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Securities; (vi) the cost of preparing the
Securities; (vii) the fees and expenses of the Trustee and any agent of
the Trustee and the fees and disbursements of counsel for the Trustee in
connection with any Indenture and the Securities; and (viii) all other
costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this
Section, and Sections 8 and 11 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any
advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters under the Pricing
Agreement relating to such Designated Securities shall be subject, in
the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such
Designated Securities are, at and as of the Time of Delivery for such
Designated Securities, true and correct in all material respects, the
condition that the Company shall have performed in all material respects
all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof; if the Company has elected
to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall
have become effective by 10:00 P.M. Washington, D.C. time, on the date
of the applicable Pricing Agreement; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
(b) ______________________, counsel for the Underwriters, shall
have furnished to the Representatives such opinion or opinions, dated
the Time of Delivery for such Designated Securities, with respect to the
incorporation of the Company, the validity of the Indenture, the
validity of the Designated Securities, the Registration Statement, the
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Prospectus as amended or supplemented, and such other related matters as
the representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Xxxx X. Xxxxxxxxx, General Counsel for the Company, or other
counsel for the Company satisfactory to the Representatives, shall have
furnished to the Representatives his written opinion, dated the Time of
Delivery for such Designated Securities, in form and substance
satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the
laws of the State of Delaware, with corporate power
and authority to own its properties and conduct its
business as described in the Prospectus as amended or
supplemented; and has been duly qualified as a foreign
corporation for the transaction of business and is in
good standing under the laws of each other
jurisdiction in which it owns or leases properties or
conducts any business so as to require such
qualification other than where the failure to be so
qualified or in good standing would not have a
material adverse effect on the Company and its
subsidiaries considered as a whole;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus as amended or supplemented,
and all of the issued shares of capital stock of the
Company have been duly and validly authorized and
issued and are fully paid and non-assessable;
(iii) Each Principal Subsidiary of the Company is a
corporation duly incorporated and validly existing in
good standing (to the extent applicable) under the
laws of its jurisdiction of incorporation;
(iv) The Company owns directly or indirectly through one or
more wholly-owned subsidiaries all of the issued and
outstanding equity securities of the Principal
Subsidiaries (except as specified in Section 2(f) of
this Agreement) free and clear of liens, encumbrances,
equities and claims; all such securities are validly
authorized, issued, fully paid and non-assessable; and
neither the Company nor any such wholly-owned
subsidiary is subject to personal liability by reason
of being an owner thereof;
(v) This Agreement and the Pricing Agreement with respect
to the Designated Securities have been duly
authorized, executed and delivered by the Company;
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(vi) To the best of such counsel's knowledge there are no
legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of
which any property of the Company or any of its
subsidiaries is the subject, other than as set forth
in the Prospectus and other than those which in the
aggregate will not have a material adverse effect on
the Company and its subsidiaries considered as a
whole;
(vii) The Designated Securities have been duly authorized by
the Company; assuming that the facsimile signatures of
officers (specified in such opinion) of the Company
and the facsimile seal of the Company have been
imprinted on the Designated Securities and that the
Designated Securities have been duly authenticated by
the Trustee under the Indenture (which assumptions
such counsel need not verify by an inspection of the
Designated Securities), the Designated Securities have
been duly executed, issued and delivered by the
Company and constitute valid and legally binding
obligations of the Company entitled to the benefits
provided by the Indenture, subject to the effect of
(A) bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to or affecting the
rights of creditors generally and (B) the application
of general principles of equity (regardless of whether
enforcement is considered in proceedings at law or in
equity); and the Designated Securities and the
Indenture conform to the descriptions thereof in the
Prospectus as amended or supplemented;
(viii) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and
legally binding instrument of the Company enforceable
in accordance with its terms, subject to the effect of
(A) bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to or affecting the
rights of creditors generally and (B) the application
of general principles of equity (regardless of whether
enforcement is considered in proceedings at law or in
equity); and the Indenture has been duly qualified
under the Trust Indenture Act.
(ix) The issue and sale of the Designated Securities and
the compliance by the Company with all of the
provisions of the Designated Securities, the
Indenture, this Agreement and the Pricing Agreement
with respect to the Designated Securities and the
consummation of the transactions herein and therein
contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or
constitute or result in a default under, or result in
the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the
Company or any Principal
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Subsidiary pursuant to the terms of, any indenture,
mortgage, deed of trust, loan agreement or other
similar agreement or instrument known to such counsel,
after such reasonable investigation as he deems
necessary, to which the Company or any of its
Principal Subsidiaries is a party or by which the
Company or any of its Principal Subsidiaries is bound
or to which any of the property or assets of the
Company or any of its Principal Subsidiaries is
subject which would cause a current or prospective
material adverse change in or affecting the financial
position, stockholders' equity or results of
operations of the Company and its subsidiaries
considered as a whole or affect the validity of the
Designated Securities or the legal authority of the
Company to comply with the Designated Securities, the
Indenture, this Agreement or the Pricing Agreement;
nor will such actions result in any violation of the
provisions of the Restated Certificate of
Incorporation or By-laws of the Company, or in any
violation of any statute or any order, rule or
regulation of any court or governmental agency or
body in the United States having jurisdiction over the
Company or any of its subsidiaries or any of their
properties which would cause a current or prospective
material adverse change in or affecting the financial
position, stockholders' equity or results of
operations of the Company and its subsidiaries
considered as a whole or affect the validity of the
Designated Securities or the legal authority of the
Company to comply with the Designated Securities, the
Indenture, this Agreement or the Pricing Agreement
(except to the extent that the issue and sale of the
Designated Securities as contemplated by this
Agreement and the Pricing Agreement and the
distribution of the Designated Securities by the
Underwriters may result in violations of state
securities or Blue Sky laws);
(x) No consent, approval, authorization, order,
registration or qualification of or with any court or
regulatory or other governmental agency or body in the
United States having jurisdiction over the Company is
required for the issue and sale of the Designated
Securities or the consummation by the Company of the
other transactions contemplated by this Agreement or
the Pricing Agreement or the Indenture, except such as
have been obtained under the Act and the Trust
Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the
Securities by the Underwriters;
(xi) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements and
12
related schedules therein, as to which such counsel
need express no opinion), when they became effective
or were filed with the Commission, as the case may be,
complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the
Commission thereunder; and he has no reason to believe
that any of such documents, when they became effective
or were so filed, as the case may be, contained, in
the case of a registration statement that became
effective under the Act, an untrue statement of a
material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, and, in the case of
other documents that were filed under the Act or the
Exchange Act with the Commission, an untrue statement
of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in
the light of the circumstances under which they were
made when such documents were so filed, not
misleading; and
(xii) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and
supplements thereto made by the Company prior to the
Time of Delivery for the Designated Securities (other
than the financial statements and other financial data
contained or incorporated by reference therein or
omitted therefrom, as to which such counsel need
express no opinion) appear on their face to be
appropriately responsive in all material respects with
the requirements of the Act and the Trust Indenture
Act and the rules and regulations thereunder; and the
information included in the Registration Statement in
response to Item 10 (insofar as it relates to him) of
Form S-3 is to the best of his knowledge an accurate
statement of the matter therein set forth and fairly
presents the information called for with respect to
that matter by the Act and the rules and regulations
thereunder.
Such counsel may also state that he has not verified, and is
not passing upon and does not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in
the Registration Statement, the Prospectus or the Prospectus as
amended or supplemented, other than those mentioned in the last
clause of subparagraph (vii) above, but such counsel shall confirm
that he has, however, participated in reviews and discussions in
connection with the preparation of the Registration Statement, the
Prospectus and the Prospectus as amended or supplemented and any
further amendments and supplements thereto made by the Company
prior to the Time of Delivery, and that in the course of such
reviews and discussions no facts came to his attention that led
him to believe that the Registration Statement or the Prospectus
on the effective date of the Registration Statement, or the
Prospectus as amended or supplemented on the date of such
amendment or supplement, or any amendment or supplement to the
Prospectus as amended or supplemented on the date
13
of such further amendment or supplement (in each case, apart from
the financial statements and related schedules and notes and other
financial data contained or incorporated by reference therein or
omitted therefrom and from any written information furnished to
the Company by any Underwriter of Designated Securities through
the Representatives expressly for use in the prospectus as amended
or supplemented or any omission therefrom) contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; and such counsel does not know of any
contracts or other documents of a character required to be filed
as an exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration
Statement or the Prospectus as amended or supplemented which are
not filed or incorporated by reference or described as required.
In rendering the foregoing opinion, such counsel may rely upon
opinions of local counsel satisfactory in form and scope to counsel
for the Representatives. In matters of New York law, such counsel may
rely upon the opinion delivered pursuant to Section 7(b) hereof.
(d) At the Time of Delivery for such Designated Securities,
Deloitte & Touche LLP shall have furnished to the Representatives a
letter or letters, dated such Time of Delivery, to the effect set forth
in Annex II hereto; and as to such other matters as the Representatives
may reasonably request and in form and substance satisfactory to the
Representatives;
(e) Since the respective dates as of which information is given
in the Prospectus as amended or supplemented there shall not have been
any material change in the capital stock (other than changes in treasury
stock within limits, or pursuant to employee plans, disclosed or
incorporated by reference in the Prospectus) or increased long-term debt
of the Company or any of its subsidiaries or any material change, or any
development involving a prospective material change, in or affecting the
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries considered as a whole, otherwise than as
set forth or contemplated in the Prospectus as amended or supplemented,
the effect of which is in the reasonable judgment of the Representatives
so material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Designated
Securities on the terms and in the manner contemplated in the Prospectus
as amended or supplemented;
(f) On or after the date of the Pricing Agreement relating to
the Designated Securities, no downgrading shall have occurred in the
rating accorded the Company's debt securities by any one of the
following statistical rating organizations: Standard & Poor's
Corporation, Xxxxx'x Investors Services, Inc. and Duff & Xxxxxx;
(g) On or after the date of the Pricing Agreement relating to
the Designated Securities, there shall not have occurred any of the
following events, the effect of which in each case, in the reasonable
judgment of the Representatives, is such as to make it impracticable for
the Underwriters to market the Securities or enforce contracts for the
sale of the Securities: (i) the outbreak or escalation of hostilities
involving the United
14
States or the declaration by the United States of a national emergency
or war, (ii) a declaration of a banking moratorium by either Federal or
New York State authorities, (iii) a suspension or halt in trading on the
New York Stock Exchange in any securities of the Company which adversely
affects the marketing of the Designated Securities or (iv) a suspension
or limitation in trading in securities generally on the New York Stock
Exchange or the establishment of minimum prices on such Exchange; and
(h) The Company shall have furnished or caused to be furnished
to the Representatives at the Time of Delivery a certificate or
certificates of officers of the Company satisfactory to the
Representatives as to the accuracy in all material respects of the
representations and warranties of the Company herein at and as of such
Time of delivery, as to the performance by the Company in all material
respects of all of its obligations hereunder to be performed at or prior
to such Time of Delivery and as to the matters set forth in subsection
(a) of this Section.
(i) The Company shall have used its best efforts to comply with
the provisions of Section 5(c) hereof with respect to the furnishing of
prospectuses on the New York business day next succeeding the date of the
Pricing Agreement.
8.(a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several,
to which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating
or defending any such action or claim; provided, however, that the
Company shall 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 an
untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
such amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by any Underwriter of
Designated Securities through the Representatives expressly for use in
the Prospectus as amended or supplemented relating to such Securities;
provided, further, that if any Preliminary Prospectus, any preliminary
prospectus supplement relating to the Designated Securities, the
Prospectus, the Prospectus as amended or supplemented or any other
prospectus relating to the Designated Securities contained any alleged
untrue statement or allegedly omitted to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading and such statement or omission shall have been
corrected in a revised Preliminary Prospectus, preliminary prospectus
supplement relating to the Designated Securities, the Prospectus, the
Prospectus as amended or supplemented, any other prospectus relating to
the Designated Securities or any amendment or supplement thereto
relating to the Designated Securities, the Company shall not be liable
to any
15
Underwriter under this subsection (a) with respect to such
alleged untrue statement or alleged omission to the extent that any such
loss, claim, damage or liability of such Underwriter results from the
fact that such Underwriter sold Securities to a person to whom there was
not sent or given at or prior to the written confirmation of such sale,
a copy of a revised Preliminary Prospectus (excluding documents
incorporated by reference) or any amendment or supplement thereto
relating to the Designated Securities (excluding documents incorporated
by reference), the Prospectus (excluding documents incorporated by
reference), the Prospectus as amended or supplemented (excluding
documents incorporated by reference) or any other amended prospectus
relating to the Designated Securities (excluding documents incorporated
by reference), or any amendment or supplement thereto relating to the
Designated Securities (excluding documents incorporated by reference),
as the case may be, containing a correction of such alleged misstatement
or omission, if the Company has made available copies thereof to such
Underwriter prior to the confirmation of such sale; and provided,
further, that the Company shall not be liable to any Underwriter under
this subsection (a) to the extent that any such loss, claim, damage
or liability of such Underwriter results from the use by such Underwriter
of the Prospectus as amended or supplemented (excluding documents
incorporated by reference) or the Prospectus as amended or supplemented
as it may be further amended or supplemented (excluding documents
incorporated by reference), as the case may be (i) otherwise than in
connection with an offer or sale of the Designated Securities or
(ii) at any time nine months or more after the time of issue of the
Prospectus as amended or supplemented unless the Company has prior to
such use amended or supplemented the Prospectus as amended or
supplemented to comply with Section 10(a)(3) of the Act if required
pursuant to Section 5(c) hereof and such Underwriter uses the Prospectus
as amended or supplemented or as so further amended or supplemented.
Each Underwriter acknowledges that the indemnity agreement in this
subsection (a) does not extend to any liability which such Underwriter
might have under Section 5(b) of the Act by reason of the fact that such
Underwriter sold Designated Securities to a person to whom there was not
sent or given, at or prior to the written confirmation of such sale, a
copy of the Prospectus (excluding documents incorporated by reference),
the Prospectus as amended or supplemented (excluding documents
incorporated by reference) or any amendment or supplement relating
thereto (excluding documents incorporated by reference), as the case may
be, if the Company has made available copies thereof to such
Underwriter.
For purposes of this subsection (a) the Prospectus (excluding
documents incorporated by reference), the Prospectus as amended or
supplemented (excluding documents incorporated by reference), any other
prospectus relating to the Designated Securities (excluding documents
incorporated by reference) or any amendment or supplement relating
thereto (excluding documents incorporated by reference), shall not be
deemed to have been made available to an Underwriter until (x) such
Underwriter has received the same or (y) such time after the receipt
thereof by the Representatives as would permit the Representatives with
reasonable diligence to deliver the same to such Underwriter.
16
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus,
any preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating
to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating
to the Securities, or any such amendment or supplement, in reliance upon
and in conformity with written information furnished to the Company by
such Underwriter through the Representatives expressly for use therein;
and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or
defending any such action or claim.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof, and in the
event that such indemnified party shall not so notify the indemnifying
party within 30 days following receipt of any such notice by such
indemnified party, the indemnifying party shall have no further
liability under such subsection to such indemnified party unless such
indemnifying party shall have received other notice addressed and
delivered in the manner provided in the second paragraph of Section 12
hereof of the commencement of such action; but the omission so to notify
the indemnifying party shall not relieve it from any liability which it
may have to any indemnified party otherwise than under such subsection.
In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof
as provided above, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof,
the indemnifying party shall not be liable to such indemnified party
under such subsection for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable
costs of investigation.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under subsection (a) or (b) above in
respect of any losses, claims,
17
damages or liabilities (or actions 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 losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriters of the Designated Securities on the
other from the offering of the Designated Securities to which such loss,
claim, damage or liability (or action in respect thereof) relates. If,
however, the allocation provided by the immediately preceding sentence
is not permitted by applicable law or if the indemnified party failed to
give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the
Company on the one hand and the Underwriters of the Designated
Securities on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters. The relative
fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Underwriters
on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to
above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price
at which the applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters of Designated
Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to
the Securities and not joint.
18
(e) The obligations of the Company under this Section 8 shall be
in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section 8 shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each officer and director of the Company and to each person, if any, who
controls the Company within the meaning of the Act.
9.(a) If any Underwriter shall default in its obligation to
purchase the Designated Securities which it has agreed to purchase under
the Pricing Agreement relating to such Designated Securities, the
Representatives may in their discretion arrange for themselves or
another party or other parties to purchase such Designated Securities on
the terms contained herein. If within thirty-six hours after such
default by any Underwriter the Representatives do not arrange for the
purchase of such Designated Securities, then the Company shall be
entitled to a further period of thirty-six hours within which to procure
another party or other parties satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that,
within the respective prescribed period, the Representatives notify the
Company that they have so arranged for the purchase of such Designated
Securities, or the Company notifies the Representatives that it has so
arranged for the purchase of such Designated Securities, the
Representatives or the Company shall have the right to postpone the Time
of Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the
Prospectus which in the opinion of the Representatives may thereby be
made necessary. The term "Underwriter" as used in this Agreement shall
include any person substituted under this Section with like effect as if
such person had originally been a party to the Pricing Agreement with
respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase
of the Designated Securities of a defaulting Underwriter or Underwriters
by the Representatives and the Company as provided in subsection (a)
above, the aggregate principal amount of the Designated Securities which
remains unpurchased does not exceed one-eleventh of the aggregate
principal amount of the Designated Securities, then the Company shall
have the right to require each non-defaulting Underwriter to purchase
the principal amount of Securities which such Underwriter agreed to
purchase hereunder and, in addition, to require each non-defaulting
Underwriter to purchase the principal amount of Designated Securities
which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter agreed
to purchase under such Pricing Agreement) of the Designated Securities
of such defaulting Underwriter or Underwriters for which such
19
arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Securities of a defaulting Underwriter or Underwriters made by
the Representatives and the Company as provided in subsection (a) above,
the aggregate principal amount of Designated Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of
the Designated Securities, or if the Company shall not exercise the
right described in subsection (b) above to require non-defaulting
Underwriters to purchase Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the
Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full
force and effect, regardless of any investigation (or any statement as
to the results thereof) made by or on behalf of any Underwriter or any
controlling person of any Underwriter, or the Company, or any officer or
director or controlling person of the Company, and shall survive
delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to
Section 9 hereof, the Company shall not then be under any liability to
any Underwriter except as provided in Sections 6 and 8 hereof; but, if
for any other reason, the Designated Securities are not delivered by or
on behalf of the Company as provided herein, the Company will reimburse
the Underwriters through the Representatives for all out-of-pocket
expenses approved in writing by the Representatives, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of the
Designated Securities, but the Company shall then be under no further
liability to any Underwriter except as provided in Sections 6 and 8
hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by the Representatives jointly or by such of
the Representatives, if any, as may be designated for such purpose in
the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall
be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex or facsimile transmission to the address of the
Representatives as set forth in the Pricing Agreement; and if to the
Company shall be delivered or sent by mail or facsimile transmission to
the address of the
20
Company set forth in the Registration Statement, Attention: Secretary;
provided, however, that any notice to an Underwriter pursuant to Section
8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire,
which address will be supplied to the Company by the Representatives
upon request. Any such statements, requests, notices or agreements shall
take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, the Company
and, to the extent provided in Sections 8 and 10 hereof, the officers
and directors of the Company and each person who controls the Company or
any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any
right under or by virtue of this Agreement or any Pricing Agreement. No
purchaser of any of the Securities from any Underwriter shall be deemed
a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As
used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by
any one or more of the parties hereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
Very truly yours,
Solutia Inc.
By:
-----------------------------
Name:
Title:
21
ANNEX I
PRICING AGREEMENT
-----------------
Name(s) of Representative(s)
As Representatives of the several
Underwriters named in Schedule I hereto,
[Address]
,
----------- -- ----
Ladies and Gentlemen:
SOLUTIA INC., a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated __________________, _____ (the
"Underwriting Agreement"), to issue and sell to the Underwriters named
in Schedule I hereto (the "Underwriters") the Securities specified in
Schedule II hereto (the "Designated Securities"). Each of the provisions
of the Underwriting Agreement is incorporated herein by reference in its
entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each
of the representations and warranties set forth therein shall be deemed
to have been made at and as of the date of this Pricing Agreement,
except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to
be a representation or warranty as of the date of the Underwriting
Agreement in relation to the Prospectus (as therein defined), and also a
representation and warranty of the date of this Pricing Agreement in
relation to the Prospectus as amended or supplemented relating to the
Designated Securities which are the subject of this Pricing Agreement.
Each reference to the Representatives herein and in the provisions of
the Underwriting Agreement so incorporated by reference shall be deemed
to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and
on behalf of each of the Underwriters of the Designated Securities
pursuant to Section 12 of the Underwriting Agreement and the address of
the Representatives referred to in such Section 12 are set forth at the
end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities,
in the form heretofore delivered to you is now proposed to be filed with
the Commission.
22
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the
Company, at the time and place and at the purchase price to the
Underwriters set forth in Schedule II hereto, the principal amount of
Designated Securities set forth opposite the name of such Underwriter in
Schedule I hereto.
If the foregoing is in accordance with your understanding, please
sign and return to us two counterparts hereof, and upon acceptance
hereof by you, on behalf of each of the Underwriters, this letter and
such acceptance hereof, including the provisions of the Underwriting
Agreement incorporated herein by reference, shall constitute a binding
agreement between each of the Underwriters and the Company. It is
understood that your acceptance of this letter on behalf of each of the
Underwriters is or will be pursuant to the authority set forth in a form
of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination, upon request, but without warranty on the
part of the Representatives as to the authority of the signers thereof.
Very truly yours,
SOLUTIA INC.
By:
------------------------
Name:
Title:
Accepted as of the date hereof:
--------------------------------------
([Name of Representative Partnership])
[Name of Representative Corporation]
By:
-----------------------------------
Name:
Title:
On behalf of each of the Underwriters
23
SCHEDULE I
Principal Amount of
Designated Securities
Underwriter to be Purchased
----------- ---------------------
[Name(s) of Representative(s)] $
[Names of other Underwriters]
--------------------
Total $
====================
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SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
AGGREGATE PRINCIPAL AMOUNT:
$
PRICE TO PUBLIC:
% of the principal amount of the Designated Securities, plus
accrued interest[, if any,] from to
[and accrued amortization[, if any,] from to ]
PURCHASE PRICE BY UNDERWRITERS:
% of the principal amount of the Designated Securities, plus
accrued interest from to [and accrued
amortization[, if any,] from to ]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[wire transfer] [certified or official bank check]
FORM OF DESIGNATED SECURITIES:
[Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company or its designated
custodian, to be made available for checking by the
Representatives at least twenty-four hours prior to the Time of
Delivery.]
INDENTURE:
Indenture, dated , 20 , between the Company
and , as Trustee
MATURITY:
25
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions], accruing from
_______.
INTEREST PAYMENT DATES:
[months and dates], commencing_____________________________.
RECORD DATES:
DENOMINATIONS:
[Amount Payable Upon Acceleration (if other than principal
amount)]
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through
the sinking fund, in whole or in part at the option of the
Company, in the amount of [$ ] or an integral multiple
thereof, [on or after , at the following redemption
prices (expressed in percentages of principal amount). If
[redeemed on or before , %, and if] redeemed
during the 12-month period beginning ,
REDEMPTION
YEAR PRICE
---- ----------
and thereafter at 100% of their principal amount, together in each
case with accrued interest to the redemption date.]
[on any interest payment date falling on or after , ,
at the election of the Company, at a redemption price equal to the
principal amount thereof, plus accrued interest to the date of
redemption.]
[Other possible redemption provisions, such as mandatory
redemption upon occurrence of certain events or redemption for
changes in tax law]
[Restriction on refunding]
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SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a
sinking fund to retire [$ principal amount of Designated
Securities on in any year commencing with the year
and ending with the year at 100% of their
principal amount plus accrued interest] [, together with
[cumulative] [noncumulative] redemptions at the option of the
Company to retire an additional [$ ] principal amount of
Designated Securities in the years through at 100%
of their principal amount plus accrued interest].
[If the Designated Securities are extendible debt Securities,
insert--
EXTENDIBLE PROVISIONS:
The Designated Securities are repayable on ,
[insert date and years], at the option of the holder, at their
principal amount with accrued interest. Initial annual interest
rate will be %, and thereafter annual interest rate will
be adjusted on , and
to a rate not less than % of the effective annual interest
rate on U.S. Treasury obligations with -
year maturities as of the [insert date 15 days
prior to maturity date] prior to such [insert maturity date].]
[If the Designated Securities are Floating Rate debt Securities,
insert--
FLOATING RATE PROVISIONS:
Initial annual interest rate will be % through [and
thereafter will be adjusted [monthly] [on each ,
, , and ] [to an
annual rate of % above the average rate for -year
[month] [securities] [certificates of deposit] issued by
and [insert names of
banks].][and the annual interest rate [thereafter] [from
through] will be the interest yield equivalent of the
weekly average per annum market discount rate for -month
Treasury bills plus % of Interest Differential (the excess,
if any, of (i) then current weekly average per annum secondary
market yield for -month certificates of deposit over (ii)
then current interest yield equivalent of the weekly average per
annum market discount rate for -month Treasury bills); [from
and thereafter the rate will be the then current
interest yield equivalent plus % of Interest Differential].]
DEFEASANCE PROVISIONS:
TIME OF DELIVERY:
27
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS]:
28
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, Deloitte &
Touche LLP shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company within the meaning of the Act and the applicable
rules and regulations thereunder adopted by the SEC;
(ii) In their opinion, the financial statements and
financial statement schedule audited by them and incorporated by
reference in the Registration Statement or the Prospectus comply
as to form in all material respects with the applicable accounting
requirements of the Securities Exchange Act of 1934 and the
related rules and regulations adopted by the SEC and they have
performed 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, for the periods specified in such letter;
(iii) On the basis of limited procedures, not constituting an
audit in accordance with auditing standards generally accepted in the
United States of America, consisting of a reading of the unaudited
financial statements and other information referred to below, a reading
of the latest available interim consolidated financial statements of the
Company and its subsidiaries, inspection of the minute books of the
Board of Directors and the Audit and Finance Committee of the Board of
Directors of the Company since the date of the latest audited financial
statements incorporated by reference in the Prospectus, inquiries of
officials of the Company responsible for financial and accounting
matters and such other inquiries and procedures as may be specified in
such letter, nothing came to their attention that caused them to believe
that:
(A) the unaudited statements of consolidated financial position,
income, and cash flow incorporated by reference in the
Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting
requirements of the Securities Exchange Act of 1934 as it
applies to Form 10-Q and the related rules and regulations
adopted by the SEC or any material modifications should be
made to the unaudited consolidated financial statements,
incorporated by reference in the registration statement, for
them to be in conformity with accounting principles
generally accepted in the United States of America;
(B) any other unaudited income statement data and statement of
financial position items included in the Prospectus do not
agree with the corresponding items in the unaudited
consolidated financial statements
29
from which such data and items were derived;
(C) any unaudited pro forma condensed consolidated financial
statements included or incorporated by reference in the
Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the
Securities Exchange Act of 1934 and the related rules and
regulations adopted by the SEC or the pro forma adjustments
have not been properly applied to the historical amounts in
the compilation of those statements;
(D) as of a specified date not more than five calendar days
prior to the date of such letter, there have been any
changes in the capital stock (other than issuances of
capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares
and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest statement
of financial position included or incorporated by reference
in the Prospectus) or any increase, excluding those changes
due solely to fluctuations in foreign currency exchange
rates, in the consolidated long-term debt or guaranteed
obligations of the Company and its subsidiaries or any
decreases in consolidated net current assets or net assets,
in each case as compared with amounts shown in the latest
statement of consolidated financial position included or
incorporated by reference in the Prospectus, except in each
case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or, in
the case of consolidated long-term debt or guaranteed
obligations, consolidated net current assets or net assets,
for changes, decreases or increases, as the case may be, which
are less than $15,000,000, or which are described in such
letter; and
(iv) In addition to the audits referred to in their opinions
incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to
in paragraph (iii) above, they have carried out certain specified
procedures, not constituting an audit in accordance with auditing
standards generally accepted in the United States of America, with
respect to certain references to the Company's historical annual ratios
of earnings to fixed charges specified by the Representatives which
references are derived from the general accounting records of the
Company and its subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference), or in Part II of, or in exhibits
and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the
Prospectus specified by the Representatives, and have compared certain
of the amounts, percentages and financial information contained in such
references with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be
deemed to refer to the Prospectus (including the documents
incorporated by reference therein) as deemed in the Underwriting
Agreement as of the date of the letter delivered on the date of
the Pricing Agreement for purposes of such letter and to the
Prospectus as
30
amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of
Delivery for such Designated Securities.
31
