DRAFT OF MARCH 9, 1999
2,000,000 SHARES
DUPONT PHOTOMASKS, INC.
COMMON STOCK, $.01 PAR VALUE
UNDERWRITING AGREEMENT
March __, 1999
March __, 1999
Xxxxxx Xxxxxxx & Co. Incorporated
Credit Suisse First Boston Corporation
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
NationsBanc Xxxxxxxxxx Securities LLC
Xxxxxxx & Company, Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
DuPont Chemical and Energy Operations, Inc. ("DCEO"), a Delaware
corporation and wholly owned subsidiary of E. I. du Pont de Nemours and Company,
a Delaware corporation ("DUPONT"), proposes to sell to the several Underwriters
named in Schedule I hereto (the "UNDERWRITERS") an aggregate of 2,000,000 shares
of the Common Stock, $.01 par value per share (the "FIRM SHARES") of DuPont
Photomasks, Inc., a Delaware corporation (the "COMPANY").
DCEO also proposes to sell to the several Underwriters, not more than an
additional 300,000 shares of the Common Stock, $.01 par value per share, of the
Company (the "ADDITIONAL SHARES"), if and to the extent that you, as Managers of
the offering, shall have determined to exercise, on behalf of the Underwriters,
the right to purchase such Additional Shares granted to the Underwriters in
Section 3 hereof. The Firm Shares and the Additional Shares are hereinafter
collectively referred to as the "SHARES." The shares of Common Stock, $.01 par
value per share, of the Company to be outstanding after giving effect to the
sales contemplated hereby are hereinafter referred to as the "COMMON STOCK."
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement, including a prospectus, relating to the
Shares. The registration statement as amended at the time it becomes effective,
including the information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A under the
Securities Act of
1933, as amended (the "SECURITIES ACT"), is hereinafter referred to as the
"REGISTRATION STATEMENT"; and the related prospectus in the form first used
to confirm sales of Shares is hereinafter referred to as the "PROSPECTUS."
If the Company has filed an abbreviated registration statement to register
additional shares of Common Stock pursuant to Rule 462(b) under the
Securities Act (the "RULE 462 REGISTRATION STATEMENT"), then any reference
herein to the term "REGISTRATION STATEMENT" shall be deemed to include such
Rule 462 Registration Statement (including, in the case of all references to
the Registration Statement and the Prospectus, documents incorporated therein
by reference). The terms "SUPPLEMENT" and "AMENDMENT" or "AMEND" as used in
this Agreement shall include all documents subsequently filed by the Company
with the Commission pursuant to the Securities Exchange Act of 1934, as
amended, (the "EXCHANGE ACT") that are deemed to be incorporated by
reference in the Prospectus.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective;
no stop order suspending the effectiveness of the Registration
Statement is in effect, and no proceedings for such purpose are
pending before or threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed
pursuant to the Exchange Act and incorporated by reference in the
Prospectus complied or will comply when so filed in all material
respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (ii) the Registration
Statement, when it became effective, did not contain and, as
amended or supplemented, if applicable, will not contain any
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, (iii) the Registration
Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects
with the Securities Act and the applicable rules and regulations
of the Commission thereunder and (iv) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, except that the representations and warranties set
forth in this Section 1(b) do not apply to statements or
omissions in the Registration
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Statement or the Prospectus based upon information relating to
any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(d) Each subsidiary of the Company that is a
"significant subsidiary" for purposes of Rule 1-02 of Regulation
S-X of the Securities Act (collectively, the "SIGNIFICANT
SUBSIDIARIES") has been duly incorporated or organized, is
validly existing as a corporation, partnership or limited
liability company in good standing under the laws of the
jurisdiction of its incorporation or organization, as the case
may be, has the power and authority to own its property and to
conduct its business and is duly qualified to transact business
and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be
so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a
whole.
(e) This Agreement has been duly authorized, executed
and delivered by the Company.
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(f) The authorized capital stock of the Company
conforms as to legal matters to the description thereof contained
in the Prospectus.
(g) All outstanding shares of Common Stock (including
the Shares) have been duly authorized and are validly issued,
fully paid and non-assessable.
(h) The execution and delivery by the Company of, and
the performance by the Company of its obligations under, this
Agreement will not contravene any provision of applicable law or
the certificate of incorporation or by-laws of the Company or any
agreement or other instrument binding upon the Company or any of
its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree
of any governmental body, agency or court having jurisdiction
over the Company or any subsidiary, and no consent, approval,
authorization or order of, or qualification with, any
governmental body or agency is required for the performance by
the Company of its obligations under this Agreement, except such
as may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the
Shares.
(i) There has not occurred any material adverse
change, or any development involving a prospective material
adverse change, in the condition, financial or otherwise, or in
the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement).
(j) Each of the Company and the Significant
Subsidiaries has all necessary consents, authorizations,
approvals, orders, certificates and permits of and from, and has
made all declarations and filings with, all federal, state,
local, foreign and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals,
to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus,
except to the extent that the failure to obtain, declare or file
would not, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
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(k) There are no legal or governmental proceedings
pending or, to the Company's knowledge, threatened to which the
Company or any of its subsidiaries is a party or to which any of
the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration
Statement or the Prospectus and are not so described in all
material respects or any statutes, regulations, contracts or
other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described in
all material respects or filed as required.
(l) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the
Securities Act, complied when so filed in all material respects
with the Securities Act and the applicable rules and regulations
of the Commission thereunder.
(m) The Company is not and, after giving effect to the
offering and sale of the Shares as described in the Prospectus,
will not be an "INVESTMENT COMPANY" as such term is defined in
the Investment Company Act of 1940, as amended.
(n) The Company and its subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state
and local laws and regulations relating to the protection of
human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("ENVIRONMENTAL
LAWS"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) are in compliance
with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental
Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(o) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating
activities or any potential liabilities to third parties) which
would, singly or in the aggregate, have a material adverse effect
on the Company and its subsidiaries, taken as a whole, except as
described in the Registration Statement or Prospectus.
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(p) Each of the Company and its subsidiaries owns or
possesses adequate licenses or other rights to use all patents,
patent rights, inventions, trade secrets, technology, know-how,
trademarks, service marks, trade names and copyrights which are
necessary to conduct its businesses as described in the
Registration Statement and Prospectus or could obtain such
licenses or rights on terms that would not have a material
adverse effect on the Company and its subsidiaries, taken as a
whole, and the expiration of any patents, patent rights, trade
secrets, trademarks, service marks, trade names or copyrights
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole. The Company has not received any
notice of, and has no knowledge of, any infringement of or
conflict with asserted rights of others with respect to, any
patents, patent rights, inventions, trade secrets, technology,
know-how, trademarks, service marks, trade names which, singly or
in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(q) There are no contracts, agreements or
understandings between the Company and any person granting such
person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities
of the Company or to require the Company to include such
securities with the Shares registered pursuant to the
Registration Statement other than the rights of DCEO and its
assignees as described in the Prospectus.
2. REPRESENTATIONS AND WARRANTIES OF DCEO AND DUPONT. DCEO and DuPont,
jointly and severally represent and warrant to and agree with each of the
Underwriters that:
(a) This Agreement has been duly authorized, executed and
delivered by or on behalf of each of DCEO and DuPont.
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(b) The execution and delivery by each of DCEO and DuPont of,
and the performance by DCEO and DuPont of their respective
obligations under, this Agreement will not contravene any provision
of applicable law, or the certificate of incorporation or by-laws
of DCEO or DuPont, or any agreement or other instrument binding
upon DCEO or DuPont or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over DCEO or
DuPont, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for
the performance by DCEO or DuPont of their respective obligations
under this Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in connection
with the offer and sale of the Shares.
(c) DCEO has, and on the Closing Date will have, valid title to
the Shares to be sold by it and the legal right and power, and all
authorization and approval required by law, to enter into this
Agreement, and to sell, transfer and deliver the Shares to be sold by
it.
(d) Upon payment for the Shares to be sold by DCEO as provided
herein, delivery of such Shares, as directed by the Underwriters, to
Cede & Co. ("CEDE") or such other nominee as may be designated by The
Depository Trust Company ("DTC"), registration of such Shares in the
name of Cede or such other nominee and the crediting of such Shares on
the books of DTC to "securities accounts" (as defined in Section 8-501
of the Uniform Commercial Code (the "UCC")) of the Underwriters, (A)
DTC shall be a "protected purchaser" of such Shares within the meaning
of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the
Underwriters will acquire a valid security entitlement in respect of
such Shares and (C) no action based on any "adverse claim" (as defined
in Section 8-102 of the UCC) to such Shares may be asserted against
the Underwriters with respect to such security entitlement; it being
understood that for the purpose of this representation and warranty,
DCEO may assume that when such payment, delivery and crediting occur,
(x) such Shares will have been registered in the name of Cede or
another nominee designated by DTC, in each case on the Company's share
registry in accordance with its certificate of incorporation, bylaws
and applicable law, (y) DTC will be registered as a "clearing
corporation" within the meaning of Section 8-102 of the UCC, and (z)
appropriate entries to the securities accounts of the several
Underwriters on the records of DTC will have been made pursuant to the
UCC.
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3. AGREEMENTS TO SELL AND PURCHASE. DCEO hereby agrees to sell to the
several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase at $______ a
share (the "PURCHASE PRICE") the respective number of Firm Shares (subject to
such adjustments to eliminate fractional shares as you may determine) set forth
in Schedule I hereto opposite the name of such Underwriter.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, DCEO agrees to sell to the
Underwriters up to 300,000 Additional Shares and the Underwriters shall have a
one-time right to purchase, severally and not jointly, up to 300,000 Additional
Shares at the Purchase Price. If you, on behalf of the Underwriters, elect to
exercise such option, you shall so notify DCEO in writing not later than 30 days
after the date of this Agreement, which notice shall specify the number of
Additional Shares to be purchased by the Underwriters and the date on which such
shares are to be purchased. Such date may be the same as the Closing Date (as
defined below) but not earlier than the Closing Date nor later than ten business
days after the date of such notice. Additional Shares may be purchased as
provided in Section 5 hereof solely for the purpose of covering over-allotments
made in connection with the offering of the Firm Shares. If any Additional
Shares are to be purchased, each Underwriter agrees, severally and not jointly,
to purchase from DCEO the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as you may determine) that bears the
same proportion to the total number of Additional Shares to be purchased as the
number of Firm Shares set forth in Schedule I hereto opposite the name of such
Underwriter bears to the total number of Firm Shares.
Each of the Company, DCEO and DuPont hereby agrees that, without the prior
written consent of Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the
Underwriters, it will not, during the period ending 90 days after the date of
the Prospectus, (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend or otherwise transfer or dispose of, directly
or indirectly, any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or (ii) enter into any swap or
other agreement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the Shares to be sold hereunder, (B) the
issuance by the Company of
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any shares of Common Stock upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof of which the
Underwriters have been advised in writing, (C) transactions by any person
other than the Company relating to shares of Common Stock or other securities
acquired in open market transactions after the completion of the offering of
the Shares or (D) the grant by the Company of options to purchase shares of
Common Stock or the issuance by the Company of shares of Common Stock under
the Company's 1997 Stock Option and Restricted Stock Plan, Amended Bonus Plan
or Second Amended and Restated Non-Employee Director Stock Option Plan. In
addition, each of DCEO and DuPont agrees that, without the prior written
consent of Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Underwriters,
it will not, during the period ending 90 days after the date of the
Prospectus, make any demand for, or exercise any right with respect to, the
registration of any shares of Common Stock or any security convertible into
or exercisable or exchangeable for Common Stock.
4. TERMS OF PUBLIC OFFERING. DCEO is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. DCEO is further advised by
you that the Shares are to be offered to the public initially at $_____ a share
(the "PUBLIC OFFERING PRICE") and to certain dealers selected by you at a price
that represents a concession not in excess of $____ a share under the Public
Offering Price, and that any Underwriter may allow, and such dealers may
reallow, a concession, not in excess of $____ a share, to any Underwriter or to
certain other dealers.
5. PAYMENT AND DELIVERY. Payment for the Firm Shares to be sold by DCEO
shall be made to DCEO in Federal or other funds immediately available in New
York City against delivery of such Firm Shares for the respective accounts of
the several Underwriters at the office of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 A.M., local time, on March __, 1999, or at
such other time on the same or such other date, not later than March __, 1999,
as shall be designated in writing by you. The time and date of such payment are
hereinafter referred to as the "CLOSING DATE."
Payment for any Additional Shares shall be made to DCEO in Federal or other
funds immediately available in New York City against delivery of such Additional
Shares for the respective accounts of the several Underwriters at the office of
Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 A.M.,
local time, on the date specified in the notice described in Section 3 or on
such other date, in any event not later than March __, 1999, as shall be
designated in writing by you. The time and date of such payment are hereinafter
referred to as the "OPTION CLOSING DATE."
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Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
6. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The obligations of DCEO
to sell the Shares to the Underwriters and the several obligations of the
Underwriters to purchase and pay for the Shares on the Closing Date are subject
to the condition that the Registration Statement shall have become effective not
later than 5:00 p.m. (New York time) on the date hereof.
The several obligations of the Underwriters are subject to the following
further conditions:
(a) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date:
(i) if applicable, there shall not have occurred
any downgrading, nor shall any notice have been given of any
intended or potential downgrading or of any review for a
possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or
any development involving a prospective change, in the
condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries,
taken as a whole, from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) that, in your
judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Shares on the terms
and in the manner contemplated in the Prospectus.
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(b) The Underwriters shall have received on the
Closing Date a certificate, dated the Closing Date and signed by
an executive officer of the Company, to the effect set forth in
clause (a)(i) above and to the effect that the representations
and warranties of the Company contained in this Agreement are
true and correct as of the Closing Date and that the Company has
complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on
or before the Closing Date.
The officer signing and delivering such certificate may
rely upon the best of his or her knowledge as to proceedings
threatened.
(c) The Underwriters shall have received on the
Closing Date an opinion of Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP,
counsel for the Company, dated the Closing Date, to the effect
that:
(i) the Company is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power
and authority to own its property and to conduct its
business as described in the Prospectus and is duly
qualified to transact business and is in good standing in
the states of Texas and California;
(ii) the authorized capital stock of the Company
conforms as to legal matters in all material respects to the
description thereof contained in the Prospectus under the
caption "Description of Capital Stock";
(iii) all outstanding shares of Common Stock
(including the Shares) have been duly authorized and are
validly issued, fully paid and non-assessable;
(iv) this Agreement has been duly authorized,
executed and delivered by the Company;
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(v) the statements (A) in the Prospectus under
the captions "Transactions and Relationships Between Us and
E. I. du Pont de Nemours and Company," "Description of
Capital Stock," and "Underwriters" and (B) in the
Registration Statement in Item 15, in each case insofar as
such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly present
in all material respects the information called for with
respect to such legal matters, documents and proceedings and
fairly summarize in all material respects the matters
referred to therein;
(vi) such counsel does not know of any legal or
governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or to which
any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not so
described or of any statutes, regulations, contracts or
other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not so
described or filed as required;
(vii) the Company is not and, after giving effect
to the offering and sale of the Shares as described in the
Prospectus, will not be an "INVESTMENT COMPANY" as such term
is defined in the Investment Company Act of 1940, as
amended; and
(viii) such counsel (A) is of the opinion that
each document of the Company incorporated by reference in
the Registration Statement and Prospectus (except for
financial statements and schedules and other financial or
statistical data included therein as to which such counsel
need not express any opinion) complied as to form when filed
with the Commission in all material respects with the
Exchange Act and the rules and regulations of the Commission
thereunder, (B) is of
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the opinion that the Registration Statement and
Prospectus (except for financial statements and schedules
and other financial or statistical data included therein
as to which such counsel need not express any opinion)
comply as to form in all material respects with the
Securities Act and the applicable rules and regulations
of the Commission thereunder, (C) has no reason to
believe that (except for financial statements and
schedules and other financial or statistical data
included therein as to which such counsel need not
express any belief) the Registration Statement and the
prospectus included therein at the time the Registration
Statement became effective contained any 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 (D) has no reason
to believe that (except for financial statements and
schedules and other financial or statistical data
included therein as to which such counsel need not
express any belief) the Prospectus contains any untrue
statement of a material fact or omits to state a material
fact necessary in order to make the statements therein,
in the light of the circumstances under which they were
made, not misleading.
(d) The Underwriters shall have received on the Closing Date an
opinion of Xxxx X. Xxxx, Esq., Executive Vice President, General
Counsel and Secretary of the Company, dated the Closing Date, to the
effect that:
(i) the Company has been duly incorporated and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole;
13
(ii) each Significant Subsidiary of the Company has been
duly incorporated or organized, is validly existing as a
corporation or partnership in good standing under the laws of the
jurisdiction of its incorporation or organization, as the case
may be, has the power and authority to own its property and to
conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(iii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this
Agreement will not contravene any provision of applicable law or
the certificate of incorporation or by-laws of the Company or, to
the best of such counsel's knowledge, any agreement or other
instrument binding upon the Company or any of its subsidiaries
that is material to the Company and its subsidiaries, taken as a
whole, or, any judgment, order or decree of any governmental
body, agency or court known to such counsel having jurisdiction
over the Company or any subsidiary, and to such counsel's
knowledge no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required
for the performance by the Company of its obligations under this
Agreement, except such as may be required by the securities or
Blue Sky laws of the various states in connection with the offer
and sale of the Shares; and
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(iv) each of the Company and the Significant Subsidiaries
has all necessary consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all
declarations and filings with, all federal, state, local, foreign
and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease,
license and use its properties and assets and to conduct its
business, except to the extent that the failure to obtain or file
would not, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
15
With respect to the opinions set forth in subsection (ii) above, to the
extent such opinions address questions of law other than those of the State of
Texas, the State of California, or the General Corporation Law of the State of
Delaware, such counsel may deliver opinions of local counsel as to such matters.
(e) The Underwriters shall have received on the Closing Date:
(i) a certificate, dated the Closing Date and signed by an
officer of DuPont, to the effect that the representations and
warranties of DuPont contained in this Agreement are true and
correct as of the Closing Date and that DuPont has complied in
all material respects with all of the agreements and satisfied
all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date; and
(ii) a certificate, dated the Closing Date and signed by an
officer of DCEO, to the effect that the representations and
warranties of DCEO contained in this Agreement are true and
correct as of the Closing Date and that DCEO has complied in all
material respects with all of the agreements and satisfied all of
the conditions on its part to be performed or satisfied hereunder
on or before the Closing Date.
(f) The Underwriters shall have received on the Closing Date an
opinion of Senior Counsel for DuPont on behalf of DCEO and DuPont,
dated the Closing Date, to the effect that:
(i) this Agreement has been duly authorized, executed and
delivered by or on behalf of each of DCEO and DuPont;
(ii) the execution and delivery by each of DCEO and DuPont
of, and the performance by DCEO and DuPont of their respective
obligations under, this Agreement will not contravene any
provision of applicable law, or the certificate of incorporation
or by-laws of DCEO or DuPont, or, to the best of such counsel's
knowledge, any agreement or other instrument binding upon DCEO or
DuPont or, to the best of such counsel's knowledge, any judgment,
order or decree of any governmental body, agency or court having
jurisdiction over DCEO or DuPont, and no consent, approval,
authorization or order of, or qualification with, any
governmental body or agency is required for the performance by
16
DCEO or DuPont of their respective obligations under this
Agreement, except such as may be required by the securities or
Blue Sky laws of the various states in connection with offer and
sale of the Shares;
(iii) DCEO has valid title to the Shares to be sold by it
and the legal right and power, and all authorization and approval
required by law, to enter into this Agreement and to sell,
transfer and deliver the Shares to be sold by it; and
(iv) upon payment for the Shares to be sold by DCEO as
provided herein, delivery of such Shares, as directed by the
Underwriters, to Cede & Co. ("CEDE") or such other nominee as may
be designated by The Depository Trust Company ("DTC"),
registration of such Shares in the name of Cede or such other
nominee and the crediting of such Shares on the books of DTC to
"securities accounts" (as defined in Section 8-501 of the Uniform
Commercial Code (the "UCC")) of the Underwriters, (A) DTC shall
be a "protected purchaser" of such Shares within the meaning of
Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the
Underwriters will acquire a valid security entitlement in respect
of such Shares and (C) no action based on any "adverse claim" (as
defined in Section 8-102 of the UCC) to such Shares may be
asserted against the Underwriters with respect to such security
entitlement; it being understood that for the purpose of this
opinion, DCEO may assume that when such payment, delivery and
crediting occur, (x) such Shares will have been registered in the
name of Cede or another nominee designated by DTC, in each case
on the Company's share registry in accordance with its
certificate of incorporation, bylaws and applicable law, (y) DTC
will be registered as a "clearing corporation" within the meaning
of Section 8-102 of the UCC, and (z) appropriate entries to the
securities accounts of the several Underwriters on the records of
DTC will have been made pursuant to the UCC.
(g) The Underwriters shall have received on the Closing Date an
opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, dated
the Closing Date, covering the matters referred to in Sections
6(c)(iv) and 6(c)(v) (but only as to the statements in the Prospectus
under "UNDERWRITERS") and 6(c)(viii) above.
With respect to Section 6(c)(viii) above, Xxxxxxx, Xxxxxxx &
Xxxxxxxx LLP may state that their opinion and belief are based upon
their
17
participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and documents
incorporated therein by reference and review and discussion of the
contents thereof, but is without independent check or verification
except as specified. With respect to Section 6(c)(viii) above, Xxxxx
Xxxx & Xxxxxxxx may state that their opinion and belief are based upon
their participation in the preparation of the Registration Statement
and Prospectus and any amendments or supplements thereto (other than
the documents incorporated by reference) and review and discussion of
the contents thereof (including documents incorporated therein by
reference), but are without independent check or verification except
as specified.
The opinion of Xxxxxxx, Xxxxxxx & Xxxxxxxx XXX, Xxxx X. Xxxx,
Esq. and Senior Counsel for DuPont described in Sections 6(c), 6(d)
and 6(f) above shall be rendered to the Underwriters at the request of
the Company or DuPont, as the case may be and shall so state therein.
(h) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory
to the Underwriters, from PricewaterhouseCoopers LLP, independent
accountants, containing statements and information of the type
ordinarily included in accountants' "COMFORT LETTERS" to underwriters
with respect to the financial statements and certain financial
information contained in the Registration Statement and the
Prospectus; PROVIDED that the letter delivered on the Closing Date
shall use a "cut-off date" not earlier than the date hereof.
(i) The "lock-up" agreements, each substantially in the form of
Exhibit A hereto, between you and executive officers and directors of
the Company relating to sales and certain other dispositions of shares
of Common Stock or certain other securities, delivered to you on or
before the date hereof, shall be in full force and effect on the
Closing Date.
The several obligations of the Underwriters to purchase Additional Shares
hereunder are subject to the delivery to you on the Option Closing Date of such
documents as they may reasonably request with respect to the good standing of
the Company, and the due authorization and issuance of the Additional Shares.
7. COVENANTS OF THE COMPANY AND DUPONT. In further consideration of the
agreements of the Underwriters herein contained, the Company and, only with
respect to Section 7(f) below, DuPont, covenants with each Underwriter as
follows:
18
(a) To furnish to you, without charge, a signed copy
of the Registration Statement (including exhibits thereto and
documents incorporated therein by reference) and for delivery to
each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto and including documents
incorporated therein by reference) and to furnish to you in New
York City, without charge, prior to 5:00 P.M. local time on the
business day following the date of this Agreement and during the
period mentioned in Section 7(c) below, as many copies of the
Prospectus and any supplements and amendments thereto or to the
Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each
such proposed amendment or supplement and not to file any such
proposed amendment or supplement to which you reasonably object
in writing, subject however, to compliance with the Securities
Act, the Exchange Act, and the rules and regulations thereunder,
and to file with the Commission within the applicable period
specified in Rule 424(b) under the Securities Act any prospectus
required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the
public offering of the Shares as in the opinion of counsel for
the Underwriters the Prospectus is required by law to be
delivered in connection with sales by an Underwriter or dealer,
any event shall occur or condition exist as a result of which it
is necessary to amend or supplement the Prospectus in order to
make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading,
or if, in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Prospectus to comply with
applicable law, forthwith to prepare, file with the Commission
and furnish, at its own expense, to the Underwriters and to the
dealers (whose names and addresses you will furnish to the
Company) to which Shares may have been sold by you on behalf of
the Underwriters and to any other dealers upon request, either
amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
19
(d) To endeavor to qualify the Shares for offer and
sale under the securities or Blue Sky laws of such states as you
shall reasonably request.
(e) To make generally available to the Company's
security holders and to you as soon as practicable an earning
statement covering the twelve-month period ending March 31, 2000
that satisfies the provisions of Section 11(a) of the Securities
Act and the rules and regulations of the Commission thereunder.
(f) Whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated,
to pay or cause to be paid all expenses incident to the
performance of its obligations under this Agreement, including:
(i) the fees, disbursements and expenses of the Company's
counsel, the Company's accountants and counsel for DCEO and
DuPont in connection with the registration and delivery of the
Shares under the Securities Act and all other fees or expenses in
connection with the preparation and filing of the Registration
Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all
printing costs associated therewith, and the mailing and
delivering of copies thereof to the Underwriters and dealers, in
the quantities hereinabove specified, (ii) all costs and expenses
related to the transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable
thereon, (iii) the cost of printing or producing any Blue Sky or
Legal Investment memorandum in connection with the offer and sale
of the Shares under state securities laws and all expenses in
connection with the qualification of the Shares for offer and
sale under state securities laws as provided in Section 7(d)
hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky or Legal
Investment memorandum, (iv) all filing fees and reasonable fees
and disbursements of counsel to the Underwriters incurred in
connection with the review and qualification of the offering of
the Shares by the National Association of Securities Dealers,
Inc., (v) all costs and expenses incident to listing the Shares
on the Nasdaq National Market, (vi) the cost of printing
certificates representing the Shares, (vii) the costs and charges
of any transfer agent, registrar or depositary, (viii) the costs
and expenses of the Company relating to investor presentations on
any "ROAD SHOW" undertaken in connection with
20
the marketing of the offering of the Shares, including,
without limitation, expenses associated with the production of
road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show
presentations with the prior approval of the Company, travel
and lodging expenses of the representatives and officers of
the Company and any such consultants, and the cost of any
aircraft chartered in connection with the road show, and (ix)
all other costs and expenses incident to the performance of
the obligations of the Company hereunder for which provision
is not otherwise made in this Section. It is understood,
however, that except as provided in this Section, Section 8
entitled "INDEMNITY AND CONTRIBUTION", and the last paragraph
of Section 10 below, the Underwriters will pay all of their
costs and expenses, including fees and disbursements of their
counsel, stock transfer taxes payable on resale of any of the
Shares by them, and any advertising expenses connected with
any offers they may make.
The provisions of this Section shall not supersede or otherwise affect any
agreement that Company, DCEO and DuPont may otherwise have for the allocation of
such expenses among themselves.
8. INDEMNITY AND CONTRIBUTION. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use therein; PROVIDED that the foregoing indemnity agreement with respect to
any preliminary prospectus shall not inure to the benefit of any Underwriter
from whom the person asserting any such losses, claims, damages or liabilities
purchased Shares, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have
21
furnished any amendments or supplements thereto) was not sent or given by or
on behalf of such Underwriter to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the
Shares to such person, and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such losses, claims, damages or
liabilities, unless such failure is the result of noncompliance by the
Company with Section 7(a) hereof.
(b) DuPont agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to such Underwriter but only
with reference to information directly relating to DuPont or DCEO included in
the Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto
(c) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, the directors of the Company, the officers of the
Company who sign the Registration Statement, DuPont, DCEO and each person, if
any, who controls the Company, DuPont or DCEO within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company and DuPont to such
Underwriter but only with reference to information relating to such Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 8(a), 8(b) or 8(c), such person (the "INDEMNIFIED
PARTY") shall promptly notify the person against whom such indemnity may be
sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the reasonable fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for (i) all Underwriters and
all persons, if any, who control any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, (ii) the
Company, its directors, its officers who sign the Registration Statement, and
each person, if any, who controls the Company within the meaning of either such
Section and (iii) DuPont, DCEO and each person, if any, who controls DuPont or
DCEO within the meaning of either such Section and that all such reasonable
22
fees and expenses shall be reimbursed as they are incurred. In the case of
any such separate firm for the Underwriters and such control persons of the
Underwriters, such firm shall be designated in writing by Xxxxxx Xxxxxxx &
Co. Incorporated. In the case of any such separate firm for the Compay and
such directors, officers and control persons of the Company such firm shall
be designated in writing by the Company. In the case of any such separate
firm for DuPont, DCEO and control persons of DuPont or DCEO, such firm shall
be designated in writing by DuPont. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its prior
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is
or could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such proceeding.
(e) To the extent the indemnification provided for in Section 8(a), 8(b)
or 8(c) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the Shares
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the indemnifying party or parties on the one hand and of the indemnified party
or parties on the other hand in connection
23
with the statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and DuPont on
the one hand and the Underwriters on the other hand in connection with the
offering of the Shares shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Shares (before
deducting expenses) received by DCEO and the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table on the cover of the Prospectus, bear to the aggregate Public Offering
Price of the Shares. The relative fault of the Company and DuPont on the one
hand and the Underwriters on the other hand 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 or DPont or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this
Section 8 are several in proportion to the respective number of Shares they
have purchased hereunder, and not joint.
(f) The Company, DuPont and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 8 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 that does not take account of
the equitable considerations referred to in Section 8(e). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, 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 Section 8, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 8 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(g) The indemnity and contribution provisions contained in this Section 8
and the representations, warranties and other statements of the Company, DCEO
and DuPont contained in this Agreement shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, or the Company, its officers or directors or any person
24
controlling the Company or DuPont, its officers or directors or any person
controlling DuPont and (iii) acceptance of and payment for any of the Shares.
9. TERMINATION. This Agreement shall be subject to termination by notice
given by you to the Company and DuPont, if (a) after the execution and delivery
of this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses 9(a)(i) through 9(a)(iv), such event, singly or
together with any other such event, makes it, in your judgment, impracticable to
market the Shares on the terms and in the manner contemplated in the Prospectus.
10. EFFECTIVENESS; DEFAULTING UNDERWRITERS. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may be, any
one or more of the Underwriters shall fail or refuse to purchase Shares that it
has or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule I bears to the aggregate number of
Firm Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase the
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; PROVIDED that in no event shall the number of
Shares that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 10 by an amount in excess of one-ninth of
such number of Shares without the written consent of such Underwriter. If, on
the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of Firm
Shares to be purchased, and arrangements satisfactory to you, the Company and
DCEO for the purchase of such Firm Shares are not made within 36 hours after
such default, this Agreement
25
shall terminate without liability on the part of any non-defaulting
Underwriter, the Company or DCEO. In any such case either you, the Company
or DCEO shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in
the Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. If, on the Option Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Additional
Shares and the aggregate number of Additional Shares with respect to which
such default occurs is more than one-tenth of the aggregate number of
Additional Shares to be purchased, the non-defaulting Underwriters shall have
the option to (i) terminate their obligation hereunder to purchase Additional
Shares or (ii) purchase not less than the number of Additional Shares that
such non-defaulting Underwriters would have been obligated to purchase in the
absence of such default. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default
of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company, DCEO or DuPont to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company, DCEO or DuPont shall be unable to perform its
obligations under this Agreement, the party so failing, refusing or unable will
reimburse the Underwriters or such Underwriters as have so terminated this
Agreement with respect to themselves, severally, for all out-of-pocket expenses
(including the fees and disbursements of their counsel) reasonably incurred by
such Underwriters in connection with this Agreement or the offering contemplated
hereunder.
11. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
13. HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
26
Very truly yours,
DUPONT PHOTOMASKS, INC.
By:
--------------------------------------
Xxxxx X. Xxxx
Executive Vice President - Finance and
Chief Financial Officer
E. I. DU PONT DE NEMOURS AND COMPANY
By:
--------------------------------------
Name:
Title:
DU PONT CHEMICAL AND ENERGY
OPERATIONS, INC.
By:
--------------------------------------
Name:
Title:
Accepted as of the date hereof.
XXXXXX XXXXXXX & CO. INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
NATIONSBANC XXXXXXXXXX SECURITIES LLC
XXXXXXX & COMPANY, INC.
Acting severally on behalf of themselves and
several Underwriters named in
Schedule I hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By:
-------------------------------
Name:
Title:
SCHEDULE I
UNDERWRITERS
NUMBER OF FIRM SHARES
UNDERWRITERS TO BE PURCHASED
--------------------------------------------- ---------------------
Xxxxxx Xxxxxxx & Co. Incorporated . . . . .
Credit Suisse First Boston Corporation. . .
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation . . . . . . . . . .
NationsBanc Xxxxxxxxxx Securities LLC . . .
Xxxxxxx & Company, Inc. . . . . . . . . . .
---------------------
Total Firm Shares . . . . . . . . . . . . 2,000,000
EXHIBIT A
[FORM OF LOCK-UP LETTER]
____________, 1999
Xxxxxx Xxxxxxx & Co. Incorporated
Credit Suisse First Boston Corporation
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
NationsBanc Xxxxxxxxxx Securities LLC
Xxxxxxx & Company, Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated
("XXXXXX XXXXXXX") proposes to enter into an Underwriting Agreement (the
"UNDERWRITING AGREEMENT") with DuPont Photomasks, Inc., a Delaware
corporation (the "COMPANY"), DuPont Chemical and Energy Operations, Inc., a
Delaware corporation, and E. I. du Pont de Nemours and Company, a Delaware
corporation, providing for the public offering (the "PUBLIC OFFERING") by the
several Underwriters, including Xxxxxx Xxxxxxx (the "UNDERWRITERS") of
2,000,000 shares (the "SHARES") of the Common Stock, par value $.01 per
share, of the Company (the "COMMON STOCK").
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of Xxxxxx
Xxxxxxx on behalf of the Underwriters, it will not, during the period
commencing on the date hereof and ending 90 days after the date of the final
prospectus relating to the Public Offering of the Shares (the "PROSPECTUS"),
(1) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, lend or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, or (2) enter into any swap or
other agreement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery
of Common
Stock or such other securities, in cash or otherwise. The foregoing sentence
shall not apply to transactions relating to shares of Common Stock or other
securities acquired in open market transactions after the completion of the
Public Offering. In addition, the undersigned agrees that, without the prior
written consent of Xxxxxx Xxxxxxx on behalf of the Underwriters, it will not,
during the period commencing on the date hereof and ending 90 days after the
date of the Prospectus, make any demand for or exercise any right with
respect to, the registration of any shares of Common Stock or any security
convertible into or exercisable or exchangeable for Common Stock.
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
----------------------------------
Name
----------------------------------
Address
