EXHIBIT 1(c)
THE VALSPAR CORPORATION
COMMON STOCK
UNDERWRITING AGREEMENT
[Date]
___________, ____
[Names and Addresses of
Representatives]
Dear Sirs:
The Valspar Corporation, a Delaware corporation (the "Company"),
proposes to issue up to _________ shares of its Common Stock, par value $.50 per
share (the "Common Stock"), of which __________ shares of Common Stock would be
issued in connection with the sale of the Firm Shares (as hereinafter defined)
and up to _______ shares of Common Stock would be issued in connection with any
sale of Additional Shares (as hereinafter defined).
The Company proposes to sell to the several underwriters named in
Schedule I hereto (the "Underwriters"), for whom you are acting as
representatives (the "Representatives") _________ of the shares of Common Stock
(the "Firm Shares"). The Company also proposes to issue and sell to the several
Underwriters not more than an additional ___________ of the shares of Common
Stock (the "Additional Shares") if and to the extent that the Representatives
shall have determined to exercise, on behalf of the Underwriters, the right to
purchase such shares of Common Stock granted to the Underwriters in Article II
hereof. The Firm Shares and the Additional Shares are hereinafter collectively
referred to as the "Common Shares".
The Company has filed with the Securities and Exchange Commission (the
"Commission") a "shelf" registration statement on Form S-3, including a
prospectus,
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relating (among other securities) to the Common Shares, which registration
statement has become effective, and will promptly file with the Commission a
prospectus supplement specifically relating to the Common Shares pursuant to
Rule 424 under the Securities Act of 1933, as amended (the "Act"). As used in
this Agreement, the term "Registration Statement" means such registration
statement, including exhibits, financial statements, schedules and documents
incorporated by reference therein, as amended to the date hereof. The term
"Basic Prospectus" means the prospectus included in the Registration Statement.
The term "Prospectus" means the Basic Prospectus together with the prospectus
supplement specifically relating to the Common Shares as filed with the
Commission pursuant to such Rule 424. The term "preliminary prospectus" means
any preliminary prospectus supplement specifically relating to the Common Shares
together with the Basic Prospectus. Any reference herein to any preliminary
prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein as of the date of such preliminary
prospectus or the Prospectus, as the case may be.
I.
The Company represents and warrants to 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) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, 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.
(c) Each of [_____________________] (the "Significant Subsidiaries")
has been duly organized and is a validly existing corporation under the laws of
the state of its incorporation, 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 in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
(d) All of the outstanding shares of capital stock of each Significant
Subsidiary have been duly and validly authorized and issued and are fully paid
and non-assessable, and all outstanding shares of such capital stock are owned
directly or indirectly by the Company free and clear of any security interests,
claims, liens or encumbrances.
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(e) The authorized capital stock of the Company and the Common Shares
conform as to legal matters to the descriptions thereof contained in the
Prospectus.
(f) The shares of Common Stock outstanding prior to the issuance of the
Common Shares to be sold by the Company have been duly and validly authorized
and issued and are fully paid and non-assessable.
(g) The Common Shares have been duly authorized and, when the Common
Shares are issued and delivered in accordance with the terms of this Agreement,
the Common Shares will be validly issued, fully paid and non-assessable, and the
issuance of such Common Shares is not subject to any preemptive or similar
rights.
(h) This Agreement has been duly authorized, executed and delivered by
the Company.
(i) 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 articles 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 or 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 have been obtained under the Act and 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 Common Shares.
(j) There has not been 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.
(k) There are no 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 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 an exhibit to the Registration Statement
that are not described or filed as required.
(l) Each of the Company and its 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
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
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the Prospectus, except to the extent that the failure to obtain or file would
not have a material adverse effect on the Company and its subsidiaries, taken as
a whole.
(m) (i) Each document, if any, filed or to be filed pursuant to the
Securities Exchange Act of 1934, as amended (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) each part of the Registration
Statement, when such part became effective, did not contain and each such part,
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 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 paragraph (m) do not apply to
statements or omissions in the Registration Statement or the Prospectus based
upon information concerning any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein.
II.
The Company hereby agrees to sell to the several Underwriters named in
Schedule I hereto, and the Underwriters, upon the basis of the representations
and warranties herein contained, but subject to the conditions hereinafter
stated, agree, severally and not jointly, to purchase from the Company the
respective numbers of Firm Shares set forth opposite their names in Schedule I
hereto at $_____ a share (the "Purchase Price").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Shares, and the Underwriters shall have a
one-time right to purchase, severally and not jointly, up to _______ Additional
Shares at the Purchase Price. Additional Shares may be purchased as provided in
Article IV 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
the number of Additional Shares (subject to such adjustments to eliminate
fractional shares as the Representatives 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 set forth in Schedule I
hereto.
[The Company hereby agrees that, without the prior written consent of
the Representatives, it will not file any registration statement with the
Commission in respect
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of any shares of Common Stock of the Company or offer, sell, contract to sell or
otherwise dispose of any shares of such Common Stock or any securities
convertible into or exercisable or exchangeable for such Common Stock for a
period of ______ days after the date of this Agreement, other than (i) any
shares of such Common Stock sold upon the exercise of an option or warrant or
the conversion of a security outstanding on the date hereof, (ii) any shares of
such Common Stock registered, offered or issued, or options in respect of such
Common Stock granted, in connection with any employee benefit plans of the
Company or any of its subsidiaries (including employee benefit plans assumed by
the Company or any of its subsidiaries in connection with an acquisition by the
Company), or (iii) any shares of such Common Stock registered, offered or issued
in connection with an acquisition by the Company.]
III.
The Company is advised by you that the Underwriters propose to make a
public offering of their respective portions of the Common Shares as soon after
this Agreement has been entered into as in your judgment is advisable. The
Company is further advised by you that the Common Shares are to be offered to
the public initially at $______ per Common Share (the public offering price)
plus accrued dividends, if any, and to certain dealers selected by you at a
price that represents a concession not in excess of $_____ per Common Share
under the public offering price, and that the Underwriters may allow, and such
dealers may reallow, a concession, not in excess of $.____ per Common Share, to
any Underwriter or to certain other dealers.
IV.
Delivery of the Firm Shares shall be made, against payment therefor in
immediately available funds, at the office of _____________________________,
_____________________, ____________, __________, at _______ A.M., local time, on
___________, ___, or at such other time on the same or such other date, not
later than ____________, ____, as shall be designated in writing by you. The
time and date of such delivery and payment are hereinafter referred to as the
Closing Date.
Delivery of any Additional Shares shall be made, against payment
therefor in immediately available funds, at the office of _____________________,
_______________, ____________, __________, at _______ A.M., local time, on such
date (which may be the same as the Closing Date but shall in no event be earlier
than the Closing Date nor later than ten business days after the giving of the
notice hereinafter referred to) as shall be designated in a written notice from
the Representatives to the Company of their determination, on behalf of the
Underwriters, to purchase a number, specified in said notice, of Additional
Shares, or on such other date, in any event not later than _____________, ____,
as shall be designated in writing by the Representatives. The time and date of
such delivery and payment are hereinafter referred to as the Option Closing
Date. The notice of the determination to exercise the option to purchase
Additional Shares and of the Option Closing Date may be given at any time
within 30 days after the date of this Agreement.
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Payment for the Firm Shares and Additional Shares shall be made against
delivery to you on the Closing Date or the Option Closing Date, as the case may
be, for the respective accounts of the several Underwriters of stock
certificates evidencing the Firm Shares or Additional Shares, as the case may
be, registered in such names and in such denominations as you shall request in
writing not later than two full business days prior to the Closing Date or the
Option Closing Date, as the case may be, with any transfer taxes payable in
connection with the transfer of the Common Shares to the Underwriters duly paid.
V.
The several obligations of the Underwriters hereunder are subject to
the following conditions:
(a) 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, that is material and adverse
and that makes it impracticable to market the Common Shares on the terms and in
the manner contemplated in the Prospectus.
(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) above and to the effect that the
representations and warranties of the Company contained in this Agreement shall
be true and correct as of the Closing Date and the Company shall have performed
all of its obligations to be performed hereunder on or prior to the Closing
Date.
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
(c) You shall have received on the Closing Date an opinion of Xxxx
Xxxx, Esq., Senior Vice President and General Counsel of the Company, dated the
Closing Date, to the effect that
(i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State
of Delaware, 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;
(ii) each Significant Subsidiary has been duly organized and
is validly existing as a corporation under the laws of the state of its
incorporation, and is
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duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of the 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) all the outstanding shares of capital stock of each
Significant Subsidiary have been duly and validly authorized and issued
and are fully paid and non-assessable, and all outstanding shares of
such capital stock are owned directly or indirectly by the Company free
and clear of any perfected security interest and, to the knowledge of
such counsel, after due inquiry, any other security interests, claims,
liens or encumbrances;
(iv) the authorized capital stock of the Company and the
Common Shares conform as to legal matters to the descriptions thereof
contained in the Prospectus;
(v) the shares of Common Stock outstanding prior to the
issuance of the Common Shares have been duly and validly authorized and
are issued and are fully paid and non-assessable;
(vi) the Common Shares have been duly authorized and, when
issued and delivered in accordance with the terms of this Agreement,
the Common Shares will be validly issued, fully paid and
non-assessable, and the issuance of such Common Shares is not subject
to any preemptive or similar rights;
(vii) this Agreement has been duly authorized, executed and
delivered by the Company;
(viii) 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 articles 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, to
the best of such counsel's knowledge, any judgment or decree of any
governmental body, agency or court having jurisdiction over the Company
or any subsidiary, and no consent, approval or 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 have been obtained under the Act and 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 Common Shares by
the Underwriters;
(ix) the statements (x) in the Basic Prospectus under
"Description of Common Stock" and "Plan of Distribution" and (y) in the
prospectus supplement specifically relating to the Common Shares under
"Description of Common
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Stock" and "Underwriters", and (z) in the Registration Statement in
Item 15, insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, fairly present
the information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters referred to
therein;
(x) after due inquiry, such counsel does not know of any legal
or governmental proceeding 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 described or filed as required; and
(xi) such counsel (1) is of the opinion that each document, if
any, filed pursuant to the Exchange Act and incorporated by reference
in the Registration Statement and the Prospectus (except for financial
statements and schedules as to which such counsel need not express any
opinion) complied when so filed as to form in all material respects
with the Exchange Act and the rules and regulations of the Commission
thereunder, (2) is of the opinion that the Registration Statement and
the Prospectus and any supplements or amendments thereto (except for
financial statements and schedules as to which such counsel need not
express any opinion) comply as to form in all material respects with
the Act and the rules and regulations of the Commission thereunder and
(3) believes that (except for financial statements and schedules as to
which such counsel need not express any belief) the Registration
Statement and the Prospectus, as amended or supplemented, if
applicable, included therein at the time the Registration Statement
became effective did 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 and the
Prospectus, as amended or supplemented, if applicable, does not contain
any untrue statement of a material fact or omit 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) You shall have received on the Closing Date an opinion of
____________________________, counsel for the Underwriters, dated the Closing
Date, covering the matters referred to in subparagraphs (vi), (vii) and (ix)
(but only as to the statements (A) in the Basic Prospectus under "Description of
Common Stock" and "Plan of Distribution", and (B) in the prospectus supplement
specifically relating to the Common Shares under "Description of Common Stock"
and "Underwriters") and clauses (2) and (3) of (xi) of paragraph (c) above.
With respect to subparagraph (xi) of paragraph (c) above, Xxxx Xxxx,
Esq. may state that his opinion and belief are based on his participation in the
preparation of the
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Registration Statement and the Prospectus and any amendments or supplements
thereto and documents incorporated therein by reference and review and
discussion of the contents thereof, but are without independent check or
verification, except as specified. With respect to clauses (2) and (3) of
subparagraph (xi) of paragraph (c) above, _________________ may state that their
opinion and belief are based upon their participation in the preparation of the
Registration Statement and the Prospectus and any amendments of supplements
thereto (other than the documents incorporated therein 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.
(e) You shall have received on the date of this Agreement a letter
dated such date and also on the Closing Date a letter dated the Closing Date, in
each case in form and substance satisfactory to you, from Ernst & Young LLP,
independent public 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 or incorporated by reference into the Registration Statement and the
Prospectus.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the delivery to the Representatives on the
Option Closing Date of such documents as the Representatives may reasonably
request with respect to the good standing of the Company, the due authorization
and issuance of the Additional Shares and other matters related to the issuance
of the Additional Shares.
VI.
In further consideration of the agreements of the Underwriters herein
contained, the Company covenants as follows:
(a) To furnish you, without charge, one signed copy of the Registration
Statement (including exhibits thereto and documents incorporated therein by
reference) and to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto but including documents incorporated therein
by reference) and, during the period mentioned in paragraph (c) below, as many
copies of the Prospectus, any documents incorporated therein by reference and
any supplements and amendments thereto as you may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish you a copy of each such proposed amendment or supplement,
and to file no such proposed amendment or supplement to which you reasonably
object.
(c) If, during such period after the first date of the public offering
of the Common Shares as in the opinion of your counsel the Prospectus is
required by law to be delivered in connection with sales by an Underwriter or a
dealer, any event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the
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statements therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with law, forthwith to prepare and furnish,
at its own expense (unless the amendment or supplement is required as the result
of the act or omission of any Underwriter, in which case such Underwriter(s)
shall reimburse the Company for its reasonable expenses incurred to effect the
amendment or supplement), to the Underwriters and to the dealers (whose names
and addresses you will furnish to the Company) to which Common 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 will comply with law.
(d) To cooperate with the Underwriters to qualify the Common Shares for
offer and sale under the securities or Blue Sky laws of such jurisdictions as
you shall reasonably request and to pay all reasonable expenses (including
reasonable fees and disbursements of counsel) in connection therewith as well as
all fees payable in connection with the review (if any) of the offering of the
Common Shares by the National Association of Securities Dealers, Inc.
(e) To make generally available to the Company's security holders as
soon as practicable an earnings statement covering the twelve-month period
ending ____________, ____, that satisfies the provisions of Section 11(a) of the
Act and the rules and regulations of the Commission thereunder.
(f) To endeavor to list the Common Shares on the New York Stock
Exchange.
VII.
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 Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or any preliminary
prospectus, 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 the Underwriters
furnished to the Company in writing by any Underwriter through you expressly for
use therein.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless 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 Section 15 of the Act or Section 20 of the Exchange Act to the same
extent as the foregoing
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indemnity from the Company to each Underwriter, but only with reference to
information relating to such Underwriter furnished to the Company by such
Underwriter through you expressly for use in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any preliminary prospectus.
In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (hereinafter
called the indemnified party) shall promptly notify the person against whom such
indemnity may be sought (hereinafter called 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 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 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 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
all such indemnified parties, and that all such 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 Underwriters, such firm shall be
designated in writing by ___________________________. In the case of any such
separate firm for the Company, and such directors, officers and control persons
of the Company, such firm shall be designated in writing by the Company. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its 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. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the third sentence of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. 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.
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If the indemnification provided for in the first or second paragraph of
this Article VII is unavailable to an indemnified party 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 Company and the Underwriters from the offering of the
Common Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company and of the Underwriters in connection 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 the Underwriters shall be deemed to be in the same
respective proportions as the net proceeds from the offering (before deducting
expenses) received by the Company 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 Common Shares. The relative fault of the Company and the Underwriters 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 by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VII 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 the immediately preceding paragraph. 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 Article VII, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Common 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 Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Article VII are several, in proportion to the respective number
of Firm Shares to be purchased by each of such Underwriters as set forth
opposite each Underwriter's name in Schedule I hereto plus any additional Firm
Shares which such Underwriter may become obligated to purchase under this
Agreement or the Agreement Among Underwriters, and not joint.
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The indemnity and contribution agreements contained in this Article VII
and the representations and warranties of the Company 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 by or on behalf
of the Company, its officers or directors or any other person controlling the
Company and (iii) acceptance of and payment for any of the Common Shares.
VIII.
This Agreement shall be subject to termination in your absolute
discretion, by notice given to the Company, 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,
the New York Stock Exchange, (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 is material and adverse and (b)
in the case of any of the events specified in clauses (a)(i) through (iv), such
event singly or together with any other such event makes it impracticable to
market the Common Shares on the terms and in the manner contemplated in the
Prospectus.
IX.
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 Common
Shares that it or they have agreed to purchase hereunder on such date, and the
aggregate number of Common 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 Common 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 Common 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 Common Shares that any Underwriter has
agreed to purchase pursuant to Article II be increased pursuant to this Article
IX by an amount in excess of one-ninth of such number of Common Shares without
the written consent of such Underwriter. If, on the Closing Date, or the Option
Closing Date, as the case may be, any Underwriter or Underwriters shall fail or
refuse to purchase Common Shares and the aggregate number of Common Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Common Shares to be purchased on such date, and arrangements
satisfactory to you and the Company for the purchase of such Common Shares are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the Company.
In any such case either you or the
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Company shall have the right to postpone the Closing Date or the Option Closing
Date, as the case may be, 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. 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 to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company 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.
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.
This Agreement shall be governed by and construed in accordance with
the laws of the State of ______________.
Very truly yours,
THE VALSPAR CORPORATION
By
------------------------------
Its
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Accepted, ,
------------- ------
-------------------------------
By
----------------------------
Its
----------------------------
-------------------------------
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By
----------------------------
Its
----------------------------
Each acting severally on behalf
of itself and the several
Underwriters named herein.
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SCHEDULE I
Number of
Underwriter Common Shares
------------------------------------------
Total
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