Exhibit 1.1
POLAROID CORPORATION
[CONVERTIBLE] [SENIOR] [SUBORDINATED] DEBT SECURITIES
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 series of its [convertible] [senior] [subordinated]
debt securities registered under the registration statement[s] referred to in
Paragraph 1(a) hereof (the "Securities" and, individually, a "Security"). [The
Securities are convertible into shares of the common stock, par value $1.00 per
share, of the Company (the "Common Stock"), upon the terms and subject to the
conditions set forth in the Indenture (as defined herein) relating thereto, at
the conversion price set forth on Schedule I hereto.] The Company proposes to
sell to the underwriters named in Schedule II hereto (the "Underwriters"), for
whom you are acting as representatives (the "Representative"), a series of
Securities, of the designation, with the terms and in the aggregate principal
amount specified in Schedule I hereto (the "Underwritten Securities" and,
individually, an "Underwritten Security"). 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 Securities
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
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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 in each case all documents incorporated therein by
reference) specifically relating to the Underwritten Securities, 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 7(c) hereof, all statements which are required by the Act,
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the rules and regulations of the Commission under such Acts;
the Indenture, dated as of January 9, 1997 (the "Original Indenture"),
by and between the Company and State Street Bank and Trust Company, as
trustee (the "Trustee") as supplemented by a second supplemental
indenture dated as of _______ __, 1999, by and between the Company and
the Trustee (the "Second Supplemental Indenture," together with the
Original Indenture, the "Indenture"), pursuant to which the
Underwritten Securities will be issued, conforms, and with any
amendments and supplements thereto will conform, with the requirements
of the Trust Indenture Act and the rules and regulations of the
Commission thereunder; 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 7(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, or as to any statements in or omissions
from the Statement of Eligibility of the Trustee under the Indenture.
(c) Neither the Company nor the Significant Subsidiary (as defined
in paragraph (j) hereof) is in violation of its charter or by-laws or
in default under any agreement, indenture or instrument, except for
such defaults that would not result in a material
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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, the Indenture, the
Underwritten Securities, and any Delayed Delivery Contracts (as defined
in Paragraph 3 hereof) and the consummation of the transactions
contemplated herein, and in the Prospectus (including the issuance and
sale of the Underwritten Securities 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 violation of the 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 Trust Indenture 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,
the Delayed Delivery Contracts and the Indenture 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 6 hereof), (i)
the Indenture will have been validly authorized, executed and delivered
by the Company and duly qualified under the Trust Indenture Act and
will constitute the legally binding obligation of the
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Company, (ii) the Underwritten Securities will have been validly
authorized and executed and, upon payment therefor as provided in this
Agreement, will be validly issued and outstanding, and will constitute
legally binding obligations of the Company entitled to the benefits of
the Indenture, and (iii) the Underwritten Securities and the Indenture
will conform to the descriptions 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) All of the shares of Common Stock issuable upon conversion of
the Underwritten Securities have been duly and validly authorized and
reserved for issuance upon such conversion and, when issued and
delivered in accordance with the terms of the Indenture, will be duly
and validly issued, fully paid and non-assessable.]
(i) This Agreement has been validly authorized, executed and
delivered by the Company.
(j) 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 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.
(k) 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.
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(l) 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 7(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
7(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.
(m) 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 Commission after the
date as of which this representation is being made) will be at all
times during the period specified in Paragraph 7(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
7(c) hereof, timely filed as required thereby.
(n) 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
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Regulations or the rules and regulations of the Commission under the
Exchange Act as required.
(o) The Company and the Significant Subsidiary have good and valid
title to all or substantially all of their respective properties.
(p) The Company is not, and upon the issuance and sale of the
Underwritten Securities 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 SECURITIES 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 principal amount of the Underwritten
Securities set forth opposite its name in Schedule II hereto.
3. DELAYED DELIVERY CONTRACTS. Any offer to purchase Underwritten
Securities by institutional investors solicited by the Underwriters for delayed
delivery shall be made pursuant to contracts substantially in the form of
Exhibit A attached hereto, with such changes therein as the Company and the
Representative may approve (the "Delayed Delivery Contracts"). The Company shall
have the right, in its sole discretion, to approve or disapprove each such
institutional investor. Underwritten Securities which are subject to Delayed
Delivery Contracts are herein sometimes called "Delayed Delivery Underwritten
Securities" and Underwritten Securities which are not subject to Delayed
Delivery Contracts are herein sometimes called "Immediate Delivery Underwritten
Securities."
Contemporaneously with the purchase on the Delivery Date by the
Underwriters of the Immediate Delivery Underwritten Securities pursuant to this
Agreement, the Company will pay to the Representative, for the account of the
Underwriters, the compensation specified in Schedule I hereto for arranging the
sale of Delayed Delivery Underwritten Securities. The Underwriters shall have no
responsibility with respect to the validity or performance of any Delayed
Delivery Contracts.
For the purposes of determining the principal amount of Immediate
Delivery Underwritten Securities to be purchased by each Underwriter, there
shall be deducted from the principal amount of Underwritten Securities to be
purchased by such Underwriter as set forth in Schedule II hereto that portion of
the aggregate principal amount of Delayed Delivery Underwritten Securities that
the principal amount of Underwritten Securities to be purchased by such
Underwriter as set forth in Schedule II hereto bears to the aggregate principal
amount of
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Underwritten Securities set forth there to be purchased by all of the
Underwriters (in each case as adjusted by the Representative to avoid fractions
of the minimum principal amount in which the Underwritten Securities may be
issued), except to the extent that the Representative determines, in its
discretion, that such deduction shall be otherwise than in such proportion and
so advises the Company.
4. CONDITIONS OF THE COMPANY'S OBLIGATIONS. The Company shall not be
obligated to deliver any Underwritten Securities except upon payment for all
Immediate Delivery Underwritten Securities to be purchased pursuant to this
Agreement as hereinafter provided.
5. 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
Immediate Delivery Underwritten Securities which the defaulting Underwriter
agreed but failed to purchase in the respective proportions which the principal
amount of Underwritten Securities set forth in Schedule II hereto to be
purchased by each remaining non-defaulting Underwriter set forth therein bears
to the aggregate principal amount of Underwritten Securities 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
Immediate Delivery Underwritten Securities if the aggregate principal amount of
Immediate Delivery Underwritten Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase exceeds 9.09% of the total principal
amount of Underwritten Securities, and any remaining non-defaulting Underwriter
shall not be obligated to purchase more than 110% of the principal amount of
Underwritten Securities 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 Immediate Delivery
Underwritten Securities. If the remaining Underwriters or other underwriters
satisfactory to the Representative do not elect to purchase the Immediate
Delivery Underwritten Securities 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 7(k) hereof.
Nothing contained in this Paragraph 5 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
Immediate Delivery Underwritten Securities 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.
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6. DELIVERY AND PAYMENT FOR THE SECURITIES. Delivery of and payment for
the Immediate Delivery Underwritten Securities 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 Immediate Delivery Underwritten Securities to The Depository
Trust Company, on behalf of 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 Immediate Delivery Underwritten Securities shall
be in registered form and in such denominations as may be set forth on Schedule
I hereto. The certificates representing the Immediate Delivery Underwritten
Securities shall be registered in the name of Cede & Co. and 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.
7. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees:
(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
Securities, 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 the computation of the ratio of earnings to fixed charges,
the Indenture and 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, the
Trust Indenture Act and the rules and regulations under each thereof,
so as to permit the completion of the distribution of the Underwritten
Securities 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 Securities, 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
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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 Securities becomes 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 Securities), 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 Securities 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 Securities) 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
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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 Securities,
(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 Securities 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 Securities 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 Securities; 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
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 Securities [and the Common Stock issuable upon conversion
of the Underwritten Securities] on the securities exchange, if any, set
forth on Schedule I (the "Stock Exchange") on or prior to the Delivery
Date [, or prior to the initial issuance of such Common Stock, if any,]
and to cause such listing to be continued so long as any amount of the
Securities [or the Common Stock issued upon conversion of the
Underwritten Securities, if any,] remain[s] 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 Securities [or the
Common Stock issued upon conversion of the Underwritten Securities, if
any,] is outstanding or until such time as payment of principal of and
premium, if any, and interest on all the Underwritten Securities has
been duly provided for, whichever is earlier; 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 Securities [and the Common Stock issued
upon conversion of the Underwritten Securities, if any,] 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 Securities and any taxes payable in
that connection; the costs incident to the
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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
and the Delayed Delivery Contracts, if any; the fees and disbursements
of the Company's counsel, accountants and other advisors; the fees and
expenses of the Trustee, including the fees and disbursements of
counsel for the Trustee in connection with the Indenture and the
Underwritten Securities, to the extent the Trustee or its counsel, as
the case may be, requires reimbursement thereof; [the fees of the
Transfer Agent and Registrar, if any, relating to the Common Stock
issuable upon conversion of the Underwritten Securities, if any]; the
costs of any filings with the National Association of Securities
Dealers, Inc.; fees paid to rating agencies in connection with the
rating of the Securities, including the Underwritten Securities; the
fees and expenses of qualifying the Underwritten Securities 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 Securities, which are
issuable upon conversion of the Underwritten Securities, if any, for
investment (including fees of counsel to the Underwriters); the cost of
listing the Underwritten Securities [and the Common Stock issuable upon
conversion of the Underwritten Securities, if any] 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 11 hereof, the
Underwriters shall pay their own costs and expenses, including the fees
and expenses of their counsel, any transfer taxes on the Underwritten
Securities which they may sell and the expenses of advertising any
offering of the Underwritten Securities made by the Underwriters;
(l) Until the termination of the offering of the Underwritten
Securities, 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
(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 Securities to the Underwriters.
8. 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,
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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 Securities [or the Common Stock issuable upon conversion of the
Underwritten Securities, if any,] 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 8(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 7(c). For purposes of the last
proviso to the immediately preceding sentence, the term "Prospectus" shall not
be deemed to include the 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.
13
(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 8(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
8 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 8, 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 8 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 8.
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 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 8 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
14
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 8 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.
(d) If the indemnification provided for in this Paragraph 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Paragraph 8(a) or 8(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 Securities 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
15
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 Securities 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
Securities purchased under this Agreement, on the other hand, bear to the total
gross proceeds from the offering of the shares of the Securities 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 8(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
8(d) shall be deemed to include, for purposes of this Paragraph 8(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 8(d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public 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 8(d) are several in proportion to their respective underwriting
obligations and not joint.
(e) The Underwriters severally confirm that the statements with respect
to the public offering of the Securities 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.
9. 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 Immediate Delivery Underwritten
Securities if, prior to that time, any of the events described in Paragraphs
10(l), 10(m) or 10(n) hereof shall have occurred or if the Underwriters shall
decline to purchase the Immediate Delivery Underwritten Securities for any
reason permitted under this Agreement.
16
(b) If this Agreement is terminated pursuant to this Paragraph 9, such
termination shall be without liability of any party to any other party except as
provided in Paragraph 11 hereof, and PROVIDED FURTHER that Paragraphs 1 and 8
shall survive such termination and remain in full force and effect.
10. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS . The respective
obligations of the Underwriters under the Agreement with respect to the
Underwritten Securities 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 Securities.
(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.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the
Underwritten Securities and the Indenture 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:
17
(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 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 shares of the Common Stock issuable upon the
conversion of the Underwritten Securities, if any, pursuant to
the Company's Charter 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
(vii) The execution, delivery and performance of this
Agreement and the Delayed Delivery Contracts, if any, and
compliance by the Company with the provisions of the Underwritten
Securities and the Indenture [and the issuance and delivery of the
Common Stock issuable upon conversion of the Underwritten
Securities, if any,] 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.
18
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 Indenture has been duly authorized, executed
and delivered by the Company and duly qualified under the Trust
Indenture Act and, assuming that the Indenture is a valid and
binding agreement of the Trustee, constitutes a valid and legally
binding instrument of the Company enforceable against the Company
in accordance with its terms;
(iii) The Immediate Delivery Underwritten Securities
have been duly authorized, executed and issued by the Company and,
assuming due authentication thereof by the Trustee and upon
payment and delivery in accordance with this Agreement, will
constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms and
entitled to the benefits of the Indenture;
(iv) The Delayed Delivery Underwritten Securities, if
any, have been duly authorized and, when duly executed and issued
by the Company and, assuming due
19
authentication thereof by the Trustee and upon payment and
delivery by the respective purchasers thereof in accordance with
the terms of the related Delayed Delivery Contracts, will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms and entitled to the
benefits of the Indenture;
(v) The Delayed Delivery Contracts, if any, have been
duly authorized, executed and delivered by the Company and,
assuming that the Delayed Delivery Contracts are the valid and
binding agreements of the purchasers thereunder, are valid and
legally binding obligations of the parties thereto;
[(vi) The Common Stock issuable on the conversion of the
Underwritten Securities has been duly authorized and reserved for
issuance upon such conversion and, when issued and delivered in
accordance with the terms of the Charter, will be duly and validly
issued, fully paid and non-assessable;]
(vii) The statements made in each Prospectus under the
caption[s] "Description of Debt Securities" [and "Description of
Capital Stock -- Common Stock"] (or [, with respect to each,] a
comparable caption), insofar as they purport to constitute
summaries of the documents referred to therein, constitute
accurate summaries of the terms of such documents in all material
respects;
(viii) 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;
(ix) This Agreement has been duly authorized, executed
and delivered by the Company; and
(x) The Company is not an "investment company" or an
entity "controlled" by an "investment company," as such terms are
defined in the 1940 Act.
Such counsel may state that the opinions set forth in paragraphs (ii),
(iii), (iv) and (v) above are subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
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.
20
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 Securities
(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 Trust Indenture Act
and the applicable rules and regulations of the Commission thereunder, 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 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
21
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 10(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 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
22
offering or the delivery of the Securities on the terms and in the
manner contemplated in the Prospectus.
(i) If Underwritten Securities in bearer form are being delivered
by the Company on the Delivery Date in a jurisdiction other than the
United States, the Company shall have furnished to the Representative
such legal opinion or opinions as the Representative may reasonably
request addressed to the Underwriters and dated the Delivery Date, with
respect to matters relating to the offering, sale and delivery of the
Underwritten Securities in such jurisdiction.
(j) 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.
(k) The Underwritten Securities shall have been accepted for
listing on the Stock Exchange (if any), subject to official notice of
issuance.
(l) (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 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 Securities on
the terms and in the manner contemplated in the Prospectus.
(m) Subsequent to the execution and delivery of this Agreement,
(i) no downgrading shall have occurred in the rating accorded the
Company's debt securities by any "nationally recognized statistical
rating organization," as that term is defined by the
23
Commission for purposes of Rule 436(g)(2) of the Rules and Regulations
and (ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities.
(n) 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 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.
11. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the Company shall fail
to tender the Immediate Delivery Underwritten Securities for delivery to the
Underwriters for any reason permitted under this Agreement, or if the
Underwriters shall decline to purchase the Immediate Delivery Underwritten
Securities for any reason permitted under this Agreement (other than pursuant to
Paragraph 5 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 Immediate Delivery Underwritten Securities and the
solicitation of any purchases of the Delayed Delivery Underwritten Securities,
and upon demand the Company shall pay the full amount thereof to the
Representative. If this Agreement is terminated pursuant to Paragraph 5 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.
12. 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
Underwriters to
24
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.
13. 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 8 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.
14. 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.
15. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
16. 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.
17. 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.]
25
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:
Underwritten Securities
Designation:
Principal amount:
Indenture:
Date of Maturity:
Interest Rate:
Purchase Price:
[Conversion Price of
Common Stock:]
Redemption Provisions:
Authorized Denominations:
Stock Exchange Listing:
Delivery Date, Time and Location:
SCHEDULE II
PRINCIPAL
AMOUNT OF
UNDERWRITTEN
NAME OF UNDERWRITER SECURITIES
------------------- ------------
........................................................................................... $
...........................................................................................
Total
--------
$
--------
--------
EXHIBIT A
$
POLAROID CORPORATION
[CONVERTIBLE] [SENIOR] [SUBORDINATED] DEBT SECURITIES
DELAYED DELIVERY CONTRACT
[DATE]
POLAROID CORPORATION
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Dear Sirs:
The undersigned hereby agrees to purchase from Polaroid Corporation, a
Delaware corporation ("Company"), and the Company hereby agrees to sell to the
undersigned,
$
principal amount of the Company's above-captioned securities ("Securities"),
offered by the Company's prospectus dated , 1999, as supplemented by the
prospectus supplement dated , 1999 (collectively, the "Prospectus"),
receipt of a copy of which is hereby acknowledged, at a purchase price of % of
the principal amount thereof plus accrued interest from , 1999 to the
Delivery Date (as defined in the next paragraph) and on the further terms and
conditions set forth in this Contract.
Payment for and delivery of the Securities to be purchased by the
undersigned shall be made on , 1999 , herein called the "Delivery
Date."
At 10:00 A.M., New York time, on the Delivery Date, the Securities to
be purchased by the undersigned hereunder will be delivered by the Company to
the undersigned, and the undersigned will accept delivery of such Securities and
will make payment to the Company of the purchase price therefor, at the office
of . Payment will be certified or official bank check payable in
next-day funds settled through the New York Clearing House to or upon the order
of the Company.
This Contract will terminate and be of no further force and effect
after , 1999, unless (i) on or before such date it shall have been
executed and delivered by both parties hereto or (ii) the Company shall have
sold to the Underwriters named in the Prospectus the Immediate Delivery
Underwritten Securities (as defined in the Underwriting Agreement referred to in
the Prospectus) and the Company shall have mailed or delivered to the
undersigned at its address set forth below a notice to that effect, stating the
date of the occurrence thereof, accompanied by
2
copies of the opinion of counsel for the Company delivered to such Underwriters
pursuant to Paragraph 10(f) of the Underwriting Agreement.
The obligation of the undersigned to accept delivery and make payment
for the Securities on the Delivery Date will be subject to the condition that
the Securities shall not, on the Delivery Date, be an investment prohibited by
the laws of the jurisdiction to which the undersigned is subject, the
undersigned hereby representing that such an investment is not so prohibited on
the date hereof. This Contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of any Delayed Delivery Contract (as
defined in said Underwriting Agreement) is in the Company's sole discretion and,
without limiting the foregoing, need not be on a first-come, first-served basis.
If this Contract is acceptable to the Company, it is requested that the Company
sign the form of acceptance below and mail or deliver one of the counterparts
hereof to the undersigned at its address set forth below. This will become a
binding contract between the Company and the undersigned when such counterpart
is so mailed or delivered.
Very truly yours,
By
------------------------------
Name:
Title:
Address:
Accepted as of , 199 .
POLAROID CORPORATION
By
----------------------------------
Name:
Title:
