Forest Oil Corporation
1,800,000 Shares(1)
Common Stock
($.10 par value)
International Underwriting Agreement
London, England
_________ __, 1996
Salomon Brothers International Limited
Xxxxxx, Read & Co. Inc.
Xxxxxx Xxxxxxx & Co. International Limited
As Representatives of the several International Underwriters,
c/o Salomon Brothers International Limited
Victoria Plaza
000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxx XX0X XXX XXXXXXX
Dear Sirs:
Forest Oil Corporation, a New York corporation (the "Company"), and
Saxon Petroleum Inc. (the "Selling Stockholder") propose to sell 1,641,000 and
159,000 shares, respectively, of Common Stock $.10 par value (the "Common
Stock"), of the Company (said shares to be issued and sold by the Company and
the Selling Stockholder being hereinafter called the "International Underwritten
Securities"), to the underwriters named in Schedule I hereto (the "International
Underwriters"), for whom you (the "International Representatives") are acting as
representatives. The Company also proposes to grant to the International
Underwriters an option to purchase up to an additional 270,000 shares of Common
Stock (the "International Option Securities"; the International Option
Securities, together with the International Underwritten Securities, being
hereinafter called the "International Securities").
It is understood that the Company and the Selling Stockholder are
concurrently entering into a U.S. Underwriting Agreement dated the date hereof
(the "U.S. Underwriting Agreement") providing for (i) the sale by the Company
and the Selling Stockholder of an aggregate of 10,200,000 shares of Common
Stock (the "U.S. Underwritten Securities") and (ii) the grant by the Company of
an option to the U.S. Underwriters
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(1) Plus an option to purchase from the Company up to 270,000 additional
shares to cover over-allotments.
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referred to below to purchase up to an additional 1,530,000 shares of Common
Stock (the "U.S. Option Securities"; the U.S. Option Securities together with
the U.S. Underwritten Securities, being hereinafter called the "U.S.
Securities," and, together with the International Securities, the "Securities").
It is contemplated that the U.S. Securities shall be sold in the United States
and Canada through arrangements with certain underwriters outside the United
States and Canada (the "U.S. Underwriters") for whom Salomon Brothers Inc,
Xxxxxx, Read & Co. Inc., Xxxxxx Xxxxxxx & Co. Incorporated and Chase Securities,
Inc. are acting as representatives (the "Representatives"). It is further
understood and agreed that the U.S. Underwriters and the International
Underwriters have entered into an Agreement Between U.S. Underwriters and
International Underwriters dated the date hereof (the "Agreement Between U.S.
Underwriters and International Underwriters"), pursuant to which, among other
things, the International Underwriters may purchase from the U.S. Underwriters a
portion of the U.S. Securities to be sold pursuant to the U.S. Underwriting
Agreement and the U.S. Underwriters may purchase from the International
Underwriters a portion of the International Securities to be sold pursuant to
the International Underwriting Agreement.
Pursuant to the Acquisition Agreement ("Acquisition Agreement") dated
December 12, 1995 by and among the Company, ATCOR Resources Ltd., a Canadian
corporation ("ATCOR"), Atco Ltd., a corporation incorporated under the laws of
Alberta, Canadian Utilities Limited, a Canadian corporation ("Canadian
Utilities"), and Canutilities Holdings Ltd., a corporation incorporated under
the laws of Alberta ("Canutilities") and subject to the terms and conditions set
forth therein, the Company agreed to purchase and Atco Ltd., Canadian Utilities
and Canutilities agreed to sell ATCOR (the "Acquisition"), as more fully
described in the Prospectuses (as hereinafter defined). Consummation of the
Acquisition and the purchase of the U.S. Underwritten Securities by the U.S.
Underwriters and the International Underwritten Securities by the International
Underwriters, are mutually contingent transactions, and the Company intends that
the closing of the Acquisition shall occur immediately following the
consummation of the transactions contemplated by this Agreement and the U.S.
Underwriting Agreement.
1. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to, and agrees with, each
International Underwriter as set forth below in this
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Section 1(a). Certain terms used in this Section 1 are defined in paragraph
(iv) hereof.
(i) The Company meets the requirements for use of Form S-2 under
the Securities Act of 1933 (the "Act") and has filed with the Securities
and Exchange Commission (the "Commission") a registration statement (file
number 33-64949) on such Form, including related Preliminary
Prospectuses, for the registration under the Act of the offering and sale
of the Securities. The Company has filed one or more amendments thereto,
including the related Preliminary Prospectuses, each of which has
previously been furnished to you. The Company will next file with the
Commission either (i) prior to effectiveness of such registration
statement, a further amendment to such registration statement (including
the form of final prospectuses) or (ii) after effectiveness of such
registration statement, final prospectuses in accordance with Rules 430A
and 424(b)(1) or (4). In the case of clause (ii), the Company has included
in such registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the Act and the
rules thereunder to be included in the Prospectuses with respect to the
Securities and the offering thereof. As filed, such amendment and form of
final prospectuses, or such final prospectuses, shall include all Rule 430A
Information, together with all other such required information, with
respect to the Securities and the offering thereof and, except to the
extent the International Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional information and
other changes (beyond that contained in the latest International
Preliminary Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein.
(ii) It is understood that two forms of prospectuses are to be
used in connection with the offering and sale of the Securities: one form
of prospectus relating to the U.S. Securities, which are to be offered and
sold to United States and Canadian Persons, and one form of prospectus
relating to the International Securities, which are to be offered and sold
to persons other than United States and Canadian Persons. Such form of
prospectus relating to the U.S. Securities as first filed pursuant to Rule
424(b) or, if no filing pursuant to Rule 424(b) is
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made, such form of prospectus included in the Registration Statement at the
Effective Date, referred to herein as the "U.S. Prospectus"; such form of
prospectus relating to the International Securities as first filed pursuant
to Rule 424(b) or, if no filing pursuant to Rule 424(b) is made, such form
of prospectus included in the Registration Statement at the Effective Date,
is referred to herein as the "International Prospectus"; and the U.S.
Prospectus and the International Prospectus are collectively referred to
herein as the "Prospectuses".
(iii) To the best of the Company's knowledge, no order preventing
or suspending the use of any Preliminary Prospectuses has been issued by
the Commission. On the Effective Date, the Registration Statement did or
will, and when the Prospectuses are first filed (if required) in accordance
with Rule 424(b) and on the Closing Date, the Prospectuses (and any
supplements thereto) will, comply in all material respects with the
applicable requirements of the Act and the Securities Exchange Act of 1934
(the "Exchange Act") and the respective rules and regulations thereunder.
On the Effective Date, the Registration Statement did not or will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading, and, on the Effective Date, each
Prospectus, if not filed pursuant to Rule 424(b), did not or will not, and
on the date of any filing pursuant to Rule 424(b) and on the Closing Date,
each Prospectus (together with any supplement thereto) will not, include
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; PROVIDED,
HOWEVER, that the Company makes no representations or warranties as to the
information contained in or omitted from the Registration Statement, or the
Prospectuses (or any supplement thereto) in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of any
International Underwriter through the International Representatives
specifically for inclusion in or omission from the Registration Statement
or the Prospectuses (or any supplement thereto).
(iv) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "the Effective Date" shall mean each
date that the Registration Statement and any post-effective amendment or
amendments
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thereto became or become effective. "Execution Time" shall mean the date
and time that this Agreement is executed and delivered by the parties
hereto. The "U.S. Preliminary Prospectus" and the "International
Preliminary Prospectus", respectively, shall mean any preliminary
prospectus with respect to the offering of the U.S. Securities and the
International Securities, as the case may be, referred to in paragraph (i)
above and any preliminary prospectus with respect to the offering of the
U.S. Securities and the International Securities, as the case may be,
included in the Registration Statement at the Effective Date that omits
Rule 430A Information; and the U.S. Preliminary Prospectus and the
International Preliminary Prospectus are hereinafter collectively called
the "Preliminary Prospectuses". "Prospectus" shall mean the prospectus
relating to the Securities that is first filed pursuant to Rule 424(b)
after the Execution Time or, if no filing pursuant to Rule 424(b) is
required, shall mean the form of final prospectus relating to the
Securities included in the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement referred to
in paragraph (i) above, including incorporated documents, exhibits and
financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto becomes
effective prior to the Closing Date (as hereinafter defined), shall also
mean such registration statement as so amended. Such term shall include
any Rule 430A Information deemed to be included therein at the Effective
Date as provided by Rule 430A. "Rule 424" and "Rule 430A" refer to such
rules under the Act. "Rule 430A Information" means information with
respect to the Securities and the offering thereof permitted to be omitted
from the Registration Statement when it becomes effective pursuant to Rule
430A. Any reference herein to the Registration Statement, a Preliminary
Prospectus or the Prospectuses shall be deemed to refer to and include the
documents (or any portions thereof) incorporated by reference therein
pursuant to Item 12 of Form S-2 whether filed under the Exchange Act or
delivered pursuant to Item 11 of Form S-2. Any reference herein to the
Registration Statement, a Preliminary Prospectus or the Prospectuses shall
be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-2 which were filed under the Exchange
Act on or before the Effective Date of the Registration Statement or the
issue date of such Preliminary Prospectus or the Prospectuses, as the case
may be; and any reference herein
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to the terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, any Preliminary Prospectus or the Prospectuses
shall be deemed to refer to and include the filing of any document under
the Exchange Act after the Effective Date of the Registration Statement, or
the issue date of any Preliminary Prospectus or the Prospectuses, as the
case may be, deemed to be incorporated therein by reference. "United
States or Canadian Person" shall mean any person who is a national or
resident of the United States or Canada, any corporation, partnership, or
other entity created or organized in or under the laws of the United States
or Canada or of any political subdivision thereof, or any estate or trust
the income of which is subject to United States or Canadian Federal income
taxation, regardless of its source (other than any non-United States or
non-Canadian branch of any United States or Canadian Person), and shall
include any United States or Canadian branch of a person other than a
United States or Canadian Person. "U.S." or "United States" shall mean the
United States of America (including the states thereof and the District of
Columbia), its territories, its possessions and other areas subject to its
jurisdiction.
(v) The only corporate subsidiaries of the Company are listed on
Schedule II hereto and are each referred to herein as a "subsidiary" and
are collectively referred to herein as the "subsidiaries".
(vi) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
New York, and each subsidiary of the Company has been duly incorporated and
is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation or organization, as the case may be, and each
has the corporate power and authority to own its properties and conduct its
business as described in the Prospectuses, and has been duly qualified as a
foreign corporation and is in good standing under the laws of each other
jurisdiction in which its ownership or leasing of its properties or its
conduct of its material business makes such qualification necessary, except
to the extent that any failure to so qualify or be in good standing would
not have a material adverse effect on the condition (financial or other),
earnings, business or properties of the Company and its subsidiaries, taken
as a whole.
(vii) The issuance and sale of the Securities to be sold by the
Company under this Agreement and the U.S.
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Underwriting Agreement and the fulfillment of the terms of this Agreement,
the U.S. Underwriting Agreement or the Acquisition Agreement do not result
in a breach of any of the terms or provisions of, or constitute a default
(or an event which, with notice or lapse of time or both, would constitute
a default) under, (i) the Restated Certificate of Incorporation or Bylaws
of the Company or its subsidiaries, (ii) any bond, debenture, note, loan
agreement, indenture, mortgage, deed of trust, lease or other agreement or
instrument to which the Company or its subsidiaries is now a party or by
which any of them is bound, or (iii) any order of any court or governmental
agency or authority entered in any proceeding to which the Company or its
subsidiaries was or is now a party or by which either of them is bound,
which default or breach would have a material adverse effect on the
condition (financial or other), earnings, business or properties of the
Company and its subsidiaries, taken as a whole.
(viii) Neither the Company, nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectuses; and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectuses, there has not been any material increase in the long-term
debt of the Company or any of its subsidiaries.
(ix) The Company has all requisite corporate power and authority
to enter into this Agreement, the U.S. Underwriting Agreement and the
Acquisition Agreement, to issue, sell and deliver the Securities as
provided herein and to consummate the transactions contemplated herein and
in the Acquisition Agreement, and this Agreement, the U.S. Underwriting
Agreement and the Acquisition Agreement has been duly authorized, executed
and delivered by the Company. Each consent, approval, authorization,
order, declaration or filing by or with any governmental agency or body
necessary for the offer and sale of the Securities, the execution, delivery
and performance of this Agreement, the U.S. Underwriting Agreement and the
Acquisition Agreement by the Company and the consummation by the Company of
the transactions contemplated hereby, by the U.S. Underwriting
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Agreement, and by the Acquisition Agreement have been made or obtained,
except such as may be necessary to make the Registration Statement
effective (and maintain it as effective) under the Act and to qualify the
Securities for public offering by you under state securities or Blue Sky
laws or by the National Association of Securities Dealers, Inc. ("NASD") in
connection with the purchase and distribution of the Securities by the U.S.
Underwriters and the International Underwriters.
(x) The actual and as adjusted capitalization of the Company as
of September 30, 1995 is as set forth under the heading "Capitalization" in
the Prospectuses; the issued shares of capital stock of the Company conform
to the description thereof in the Prospectuses and have been duly
authorized and validly issued and are fully paid and nonassessable; all
outstanding shares of capital stock of each of the subsidiaries have been
duly authorized and validly issued, and are fully paid and nonassessable
and (except as described in the Registration Statement) are owned directly
by the Company or by another subsidiary of the Company free and clear of
any liens, encumbrances, equities or claims.
(xi) The Securities to be issued and sold by the Company to the
International Underwriters hereunder and to the U.S. Underwriters under the
U.S. Underwriting Agreement have been duly authorized and, when issued and
paid for as contemplated herein, will be validly issued, fully paid and
nonassessable and will conform to the description thereof in the
Prospectuses and will not have been issued in violation of or subject to
any preemptive rights or rights of first refusal.
(xii) Except as described in the Registration Statement, there are
no options, warrants, agreements, preemptive rights, conversion rights,
contracts or other rights in existence to purchase or acquire from the
Company any shares of the capital stock or securities or obligations
convertible into, or any contracts or commitments to issue or sell shares
of capital stock or any such rights or other securities of the Company.
The descriptions of the Company's retirement and savings, stock option,
stock purchase and other stock plans or arrangements, and the options or
other rights granted and exercised thereunder, as set forth in the
Prospectuses, are accurate and fair summaries of such plans, arrangements,
options and rights.
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(xiii) There are no legal, regulatory, administrative or
governmental actions, suits or proceedings pending to which the Company or
any of its subsidiaries or any of their officers is a party or of which any
properties of the Company or any of its subsidiaries is the subject except
as set forth in the Prospectuses, or as individually or in the aggregate,
do not now have and are not reasonably expected in the future to have any
material adverse effect in the condition (financial or other), earnings,
business or properties of the Company and its subsidiaries, taken as a
whole; and to the best knowledge of the Company, no such proceedings are
threatened or contemplated by any of such governmental, regulatory or
administrative authorities or others and there are no agreements,
contracts, leases or documents of the Company or any of its subsidiaries
that are required to be described in the Prospectuses or to be filed as
exhibits to the Registration Statement by the Act or the Exchange Act or
the rules and regulations thereunder which have not been described in all
material respects in the Prospectuses or filed as exhibits to the
Registration Statement.
(xiv) All material agreements to which the Company or any of its
subsidiaries is a party and which are required to be described in the
Registration Statement or the Prospectuses are described therein. The
Company is not in breach of or in violation under any of the material terms
or provisions of, or in default under, (i) any material contract,
indenture, mortgage, deed of trust, permit, license, note agreement or
other material agreement or material instrument to which the Company is a
party or by which any of its properties are bound, (ii) its Restated
Certificate of Incorporation or Bylaws, or (iii) any order, judgment,
statute, rule or regulation of any court or governmental, administrative or
regulatory agency or body having jurisdiction over the Company or any of
its properties, except as may be properly described in the Prospectuses or
such as individually or in the aggregate do not now have and are not
reasonably expected to have a material adverse effect upon the condition
(financial or other), earnings, business or properties of the Company and
its subsidiaries, taken as a whole.
(xv) The Company has obtained the agreement of each of the
Company's directors and executive officers that such persons will not, for
a period of 120 days after the date of the Prospectuses, offer to sell,
contract to sell or otherwise sell (including without limitation in a short
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sale), grant any option to purchase, or dispose of any shares of Common
Stock of the Company, any options or warrants to purchase any shares of
Common Stock of the Company, or any securities convertible into or
exchangeable for shares of Common Stock of the Company, without the prior
written consent of the Salomon Brothers Inc and Salomon Brothers
International Limited, as the case may be, except the Company may issue
securities pursuant to the Company's retirement, savings, stock option or
other benefit or incentive plans maintained for its officers, directors or
employees.
(xvi) The Company has not taken and will not take, directly or
indirectly, prior to the earlier of 90 days from the date of this Agreement
and the U.S. Underwriting Agreement and the termination of the underwriting
syndicate contemplated by this Agreement and the U.S. Underwriting
Agreement, any action designed to stabilize or manipulate the price of any
security of the Company, or which caused or resulted in, or which might in
the future reasonably be expected to cause or result in, stabilization or
manipulation of the price of any security of the Company.
(xvii) KPMG Peat Marwick LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by Canadian securities regulations, the Act and the
Exchange Act and the rules and regulations of the Commission thereunder.
(xviii) Price Waterhouse, who have certified certain financial
statements of ATCOR and its subsidiaries, are independent public
accountants, as required by the Act in the Exchange Act and the rules and
regulations of the Commission thereunder.
(xix) The consolidated financial statements of the Company
(including the related notes and supporting schedules) filed as part of the
Registration Statement or included or incorporated by reference in the
Prospectuses present fairly in all material respects the condition
(financial or other) and results of operations of the Company and its
consolidated subsidiaries, at the dates and for the periods indicated, and
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods involved,
except as set forth in the notes to such financial statements and except to
the extent that certain footnote
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disclosures regarding the unaudited financial statements have been omitted
in accordance with the applicable rules of the Commission. The amounts
included in the Registration Statement and the amounts in the Prospectuses
under the captions "Prospectus Summary -- Summary Financial and Operating
Data" and "Selected Financial and Operating Data" fairly present, in all
material respects, the information shown therein and have been determined
on a basis consistent with the financial statements included in the
Registration Statement and the Prospectuses.
(xx) The Company effected a five to one reverse stock split of
its outstanding Common Stock on January , 1996; neither the Board of
Directors of the Company (or any committee thereof) nor any shareholder of
the Company have taken any action since such date, or to the knowledge of
the Company are contemplating taking any action, to rescind such reverse
stock split; and no legal, regulatory, administrative or governmental
action, suit or proceeding to which the Company or any of its subsidiaries
or any of their officers is a party is pending, or to the knowledge of the
Company threatened, which seeks to rescind such reverse stock split.
(xxi) The Acquisition Agreement is in full force and effect; and
neither the Board of Directors of the Company (or any committee thereof)
nor any shareholder of the Company has taken any action, or to the
knowledge of the Company is contemplating taking any action, to modify,
amend, supplement or rescind the Acquisition Agreement; all of the
conditions to consummating the Acquisition have been satisfied or are
reasonably expected by the Company to be satisfied as of the Closing Date,
and no event has occurred, or to the knowledge of the Company is reasonably
expected to occur, which would prevent or delay the consummation of the
Acquisition immediately, or waive any provision thereof, following the
consummation of the sale of the International Underwritten Securities
pursuant to this Agreement and the U.S. Underwritten Securities pursuant to
the U.S. Underwriting Agreement.
(xxii) The agreement of The Anschutz Corporation ("Anschutz") to
not transfer any of the shares of Common Stock of the Company owned by it,
except in certain limited circumstances, for a period of nine months
following Closing Date, is in full force and effect, and the Company will
not enter into any agreement to modify, amend, supplement or rescind such
agreement, or waive any provision thereof, for
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a period of 180 days from the date of the Prospectuses without the prior
written consent of Salomon Brothers Inc.
(xxiii) The agreement of Joint Energy Development Investments
Limited Partnership ("JEDI") to not transfer any of the shares of Common
Stock of the Company owned by it, except in certain limited circumstances,
described in the Prospectuses, is in full force and effect, and the Company
will not enter into any agreement to modify, amend, supplement or rescind
such agreement, or waive any provision thereof, for a period of 180 days
from the date of the Prospectus without the prior written consent of
Salomon Brothers Inc.
(b) The Selling Stockholder represents and warrants to, and agrees
with each International Underwriter that:
(i) The Selling Stockholder is the lawful owner of the Securities to
be sold by the Selling Stockholder hereunder and under the U.S.
Underwriting Agreement and upon sale and delivery of, and payment for, such
Securities, as provided herein, the Selling Stockholder will convey good
and marketable title to such Securities, free and clear of all liens,
encumbrances, equities and claims whatsoever.
(ii) The Selling Stockholder has not taken and will not take, directly
or indirectly, prior to the earlier of 90 days from the date of this
Agreement and the U.S. Underwriting Agreement and the termination of the
underwriting syndicate contemplated by this Agreement and the U.S.
Underwriting Agreement, any action designed to or which has constituted or
which might reasonably be expected to cause or result, under the Exchange
Act or otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Securities.
(iii) Certificates in negotiable form for the Selling Stockholder's
Securities have been placed in custody, for delivery pursuant to the terms
of this Agreement and the U.S. Underwriting Agreement, under a Custody
Agreement duly authorized, executed and delivered by such Selling
Stockholder, in the form heretofore furnished to you (the "Custody
Agreement") with The Chase Manhattan Bank of Canada, as custodian (the
"Custodian"); the International Securities represented by the certificates
so held in custody for the Selling Stockholder are subject to the interest
hereunder of the International Underwriters and the
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Company; the arrangements for custody and delivery of such certificates,
made by the Selling Stockholder hereunder, under the U.S. Underwriting
Agreement and under the Custody Agreement, are not subject to termination
by any acts of the Selling Stockholder, or by operation of law or by the
occurrence of any other event; and if such event shall occur before the
delivery of such Securities hereunder or under the U.S. Underwriting
Agreement, certificates for the Securities will be delivered by the
Custodian in accordance with the terms and conditions of this Agreement,
the U.S. Underwriting Agreement and the Custody Agreement as if such event
had not occurred, regardless of whether or not the Custodian shall have
received notice of such event.
(iv) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by the Selling
Stockholder of the transactions contemplated herein, except such as may
have been obtained under the Act and such as may be required under the blue
sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the U.S. Underwriters and the
International Underwriters and such other approvals as have been obtained.
(v) Neither the sale of the Securities being sold by the Selling
Stockholder nor the consummation of any other of the transactions herein
contemplated, or contemplated by the U.S. Underwriting Agreement, by such
Selling Stockholder or the fulfillment of the terms hereof or of the U.S.
Underwriting Agreement by such Selling Stockholder will conflict with,
result in a breach or violation of, or constitute a default under any law
or the charter or by-laws of such Selling Stockholder or the terms of any
indenture or other agreement or instrument to which such Selling
Stockholder or any of its subsidiaries is a party or bound, or any
judgment, order or decree applicable to such Selling Stockholder or any of
its subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over such Selling
Stockholder or any of its subsidiaries.
2. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth:
(a) The Company and the Selling Stockholder agree to sell to each
International Underwriter, and each
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International Underwriter agrees, severally and not jointly, to purchase
from the Company, at a purchase price of $____ per share, the amount of the
International Underwritten Securities set forth opposite such International
Underwriter's name in Schedule I hereto.
(b) The Company hereby grants an option to the several International
Underwriters to purchase, severally and not jointly, up to 270,000 shares
of the International Option Securities at the same purchase price per share
as the International Underwritten Securities by the International
Underwriters. Said option may be exercised in whole or in part at any time
(but not more than once), on or before the 30th day after the date of the
U.S. Prospectus upon written or telegraphic notice by the Representatives
to the Company setting forth the number of shares of the International
Option Securities as to which the several International Underwriters are
exercising the option and the settlement date. Delivery of certificates
for the shares of International Option Securities by the Company, and
payment therefor to the Company, shall be made as provided in Section 3
hereof. The number of shares of the International Option Securities to be
purchased by each International Underwriter shall be the same percentage of
the total number of shares of the International Option Securities to be
purchased by the several International Underwriters as such International
Underwriter is purchasing of the International Underwritten Securities,
subject to such adjustments as you in your absolute discretion shall make
to eliminate any fractional shares.
3. DELIVERY AND PAYMENT. Delivery of and payment for the International
Underwritten Securities shall be made at 9:00 AM, New York City time, on
January __, 1996, or such later date (not later than ___, 1996) as the
International Representatives shall designate, which date and time may be
postponed by agreement between the International Representatives and the Company
or as provided in Section 9 hereof (such date and time of delivery and payment
for the U.S. Securities being herein called the "Closing Date"). Delivery of
the International Underwritten Securities shall be made to the International
Representatives from the respective accounts of the several International
Underwriters against payment by the several International Underwriters through
the International Representatives of the purchase price thereof to or upon the
order of the Company and the Selling Stockholder by certified or official bank
check or checks drawn on or by a New York Clearing House bank and payable in
next day funds, or at the option of the Company by wire transfer to accounts
designated
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in writing by the Company and the Selling Stockholder (as the case may be) of
immediately available funds; provided that, the Company and the Selling
Stockholder shall reimburse the International Underwriters by payment to the
International Representatives for the cost of providing such immediately
available funds (which reimbursement shall be netted against the amounts payable
to the Company and the Selling Stockholder). Delivery of the International
Underwritten Securities shall be made at such location as the International
Representatives shall reasonably designate at least one business day in advance
of the Closing Date and payment for the Securities shall be made at the office
of Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx. Certificates
for the International Underwritten Securities shall be registered in such names
and in such denominations as the International Representatives may request not
less than three full business days in advance of the Closing Date.
The Company and Selling Stockholder agree to have the U.S. Securities
available for inspection, checking and packaging by the International
Representatives in New York, New York, not later than 2:00 PM on the business
day prior to the Closing Date.
The Selling Stockholder will pay all applicable state transfer taxes,
if any, involved in the transfer to the several International Underwriters of
the International Securities to be purchased by them from the Selling
Stockholder and the respective International Underwriters will pay any
additional stock transfer taxes involved in further transfers.
If the option provided for in Section 2(b) hereof is exercised after
the third business day prior to the Closing Date, the Company will deliver (at
the expense of the Company) to the International Representatives, at Seven World
Trade Center, New York, New York, on the date specified by the International
Representatives (which shall be within four business days after exercise of said
option), certificates for the International Option Securities in such names and
denominations as the International Representatives shall have requested against
payment of the purchase price thereof to or upon the order of the Company by
certified or official bank check or checks drawn on or by a New York Clearing
House bank and payable in next day funds, or by wire transfer of immediately
available funds if so requested by the Company provided that the Company
reimburses the International Underwriters by payment to the International
Representatives for the cost of providing such immediately available funds. If
settlement for the International Option Securities occurs after the Closing
Date, the Company will deliver to the International Representatives on the
settlement
-16-
date for the International Option Securities, and the obligation of the
Underwriters to purchase the International Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
It is understood and agreed that the Closing Date shall occur
simultaneously with the "Closing Date" under the International Underwriting
Agreement.
4. OFFERING BY INTERNATIONAL UNDERWRITERS. It is understood that the
several International Underwriters propose to offer the Securities for sale to
the public as set forth in the International Prospectus.
5. AGREEMENTS.
(a) The Company agrees with the several International Underwriters
and the Selling Stockholder that:
(i) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendments thereof, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of the
Registration Statement or supplement to the International Prospectus
without your prior consent, which consent shall not be unreasonably
withheld. Subject to the foregoing sentence, if the Registration Statement
has become or becomes effective pursuant to Rule 430A, or filing of the
International Prospectus is otherwise required under Rule 424(b), the
Company will cause the International Prospectus, properly completed, and
any supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the International Representatives of
such timely filing. The Company will promptly advise the International
Representatives (A) when the Registration Statement, if not effective at
the Execution Time, and any amendment thereto, shall have become effective,
(B) when the International Prospectus, and any supplement thereto, shall
have been filed (if required) with the Commission pursuant to Rule 424(b),
(C) when, prior to termination of the offering of the International
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (D) of any request by the Commission for any
amendment of the Registration Statement
-17-
or supplement to the International Prospectus or for any
additional information, (E) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (F) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the International Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its reasonable best efforts to prevent
the issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(ii) If, at any time when a prospectus relating to the
International Securities is required to be delivered under the Act, any
event occurs as a result of which the International Prospectus as then
supplemented would include any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or
if it shall be necessary to amend the Registration Statement or supplement
the International Prospectus to comply with the Act or the Exchange Act or
the respective rules thereunder, the Company promptly will prepare and file
with the Commission, subject to the second sentence of paragraph (a)(i) of
this Section 5, an amendment or supplement which will correct such
statement or omission or effect such compliance.
(iii) As soon as practicable, the Company will make generally
available to its security holders and to the International Representatives
an earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule 158
under the Act.
(iv) The Company will furnish to the Representatives and counsel
for the International Underwriters, without charge, signed copies of the
Registration Statement (including exhibits thereto) and to each other
International Underwriter a copy of the Registration Statement (without
exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies of each
International Preliminary Prospectus and any supplement thereto as the
International Representatives may reasonably request. The Company will pay
the expenses of printing or other production of all documents relating to
the offering.
-18-
(v) The Company will arrange for the qualification of the Securities
for sale under the laws of such jurisdictions as the International
Representatives may designate and will maintain such qualifications in effect
so long as required for the distribution of the U.S. Securities; PROVIDED,
HOWEVER, that the Company shall not be required to qualify to do business in
any jurisdiction where it is not now qualified or to file a general consent to
service of process in any jurisdiction. The Company will pay the fee of the
NASD in connection with its review of the offering.
(vi) The Company will not, for a period of 120 days following the
Execution Time, without the prior written consent of Salomon Brothers
International Limited, offer, sell or contract to sell, or otherwise dispose of,
directly or indirectly, or announce the offering of, any other shares of Common
Stock or any securities convertible into, or exchangeable for, shares of Common
Stock; PROVIDED, HOWEVER, that the Company may issue securities (A) pursuant to
any stock option, retirement, savings or other benefit or incentive plans
maintained for the Company's officers, directors or employees, in effect at
the Execution Time and (B) for the payment of regular dividends in the
Company's $.75 Convertible Preferred Stock.
(vii) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida, Chapter 92-198,
AN ACT RELATING TO DISCLOSURE OF DOING BUSINESS WITH CUBA, and the Company
further agrees that if it commences engaging in business with the government of
Cuba or with any person or affiliate located in Cuba after the date the
Registration Statement becomes or has become effective with the Securities and
Exchange Commission or with the Florida Department of Banking and Finance (the
"Department"), whichever date is later, or if the information reported in the
Prospectus, if any, concerning the Company's business with Cuba or with any
person or affiliate located in Cuba changes in any material way, the Company
will provide the Department notice of such business or change, as appropriate,
in a form acceptable to the Department.
(b) Each International Underwriter agrees that (i) it is not
purchasing any of the International Securities for the account of any United
States or Canadian Person, (ii) it has not offered or sold, and will not offer
or sell, directly or indirectly, any of the Securities or distribute any
International Prospectus to any person in the United States or Canada, or to any
United States or Canadian
-19-
Person, and (iii) any dealer to whom it may sell any of the International
Securities will represent that it is not purchasing for the account of any
United States or Canadian Person and agree that it will not offer or resell,
directly or indirectly, any of the International Securities in the United States
or Canada, or to any United States or Canadian Person or to any other dealer who
does not so represent and agree; PROVIDED, HOWEVER, that the foregoing shall not
restrict (A) purchases and sales between the U.S. Underwriters on the one hand
and the International Underwriters on the other hand pursuant to the Agreement
Between U.S. Underwriters and International Underwriters, (B) stabilization
transactions contemplated under the Agreement Between U.S. Underwriters and
International Underwriters, conducted through Salomon Brothers Inc (or through
the Representatives and International Representatives) as part of the
distribution of the Securities, and (C) sales to or through (or distributions of
International Prospectuses or International Preliminary Prospectuses to) persons
not United States or Canadian Persons who are investment advisors, or who
otherwise exercise investment discretion, and who are purchasing for the account
of any United States or Canadian Person.
(c) The agreements of the International Underwriters set forth in
paragraph (b) of this Section 5 shall terminate upon the earlier of the
following events:
(i) a mutual agreement of the Representatives and the International
Representatives to terminate the selling restrictions set forth in
paragraph (b) of this Section 5 and Section 5(b) of the U.S. Underwriting
Agreement; or
(ii) the expiration of a period of 30 days after the Closing Date,
unless (A) the International Representatives shall have given notice to the
Company and the Representatives that the distribution of the International
Securities by the International Underwriters has not yet been completed, or
(B) the Representatives shall have given notice to the Company and the
International Underwriters that the distribution of the U.S. Securities by
the U.S. Underwriters has not yet been completed. If such notice by the
Representatives or the International Representatives is given, the
agreements set forth in such paragraph (b) shall survive until the earlier
of (1) the event referred to in clause (i) of this
-20-
subsection (c) or (2) the expiration of an additional period of 30 days
from the date of any such notice.
6. CONDITIONS TO THE OBLIGATIONS OF THE INTERNATIONAL UNDERWRITERS. The
obligations of the International Underwriters to purchase the International
Underwritten Securities and the International Option Securities shall be subject
to the accuracy of the representations and warranties on the part of the Company
and the Selling Stockholder contained herein as of the Execution Time, the
Closing Date and any settlement date pursuant to Section 3 hereof, to the
accuracy of the statements of the Company and the Selling Stockholder made in
any certificates pursuant to the provisions hereof, to the performance by the
Company and the Selling Stockholder of their obligations hereunder and to the
following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the International Representatives agree in
writing to a later time, the Registration Statement will become effective
not later than (i) 6:00 P.M New York City time on the date of determination
of the public offering price, if such determination occurred at or prior to
3:00 P.M. New York City time on such date or (ii) 12:00 Noon on the
business day immediately following the day on which the pubic offering
price was determined, if such determination occurred after 3:00 P.M. New
York City time on such date; if filing of the Prospectuses, or any
supplement thereto, is required pursuant to Rule 424(b), the Prospectuses,
and any such supplement, will be filed in the manner and within the time
period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the International
Representatives the opinion of Xxxxxx X. XxXxxxxx, Esq., Corporate Counsel
and Secretary for the Company, and Xxxxxx & Xxxxxx L.L.P., counsel for the
Company each dated the Closing Date, in the forms specified in
Sections 6(b) and 6(c), respectively, of the U.S. Underwriting Agreement.
(c) The International Representatives shall have received from Xxxxxx
Xxxxxx & Xxxxxxx, counsel for the International Underwriters, such opinion
or opinions, dated the Closing Date, with respect to the issuance and sale
of the International Securities, the Registration Statement,
-21-
the International Prospectus (together with any supplement thereto) and
other related matters as the International Representatives may reasonably
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(d) The Company shall have furnished to the International
Representatives a certificate of the Company, signed by the Chairman of the
Board or the President and the principal financial or accounting officer of
the Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Prospectuses, any supplement to the Prospectuses and this Agreement and
that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date pursuant to this Agreement;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectuses (exclusive of any supplement thereto),
there has been no material adverse change in the condition (financial
or other), earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or contemplated in the Prospectus (exclusive of any supplement
thereto).
(e) At the Execution Time and at the Closing Date, KPMG Peat Marwick
LLP shall have furnished to the International Representatives a letter or
letters, dated respectively as of the Execution Time and as of the Closing
Date, in form and substance satisfactory to the International
Representatives.
-22-
(f) At the Execution Time and at the Closing Date, Price Waterhouse
shall have furnished to the International Representatives a letter or
letters, dated respectively as of the Execution Time and as of the Closing
Date, in form and substance satisfactory to the International
Representatives.
(g) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectuses (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraphs (e) and (f) of this Section
6 or (ii) any change, or any development involving a prospective change, in
or affecting the business or properties of the Company and its subsidiaries
and ATCOR, taken as a whole, the effect of which, in any case referred to
in clause (i) or (ii) above, is, in the judgment of the International
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Registration Statement (exclusive of any amendment
thereof) and the Prospectuses (exclusive of any supplement thereto).
(h) At the Execution Time, the Company shall have furnished to the
International Representatives a letter substantially in the form of Exhibit
A hereto from each executive officer and director of the Company addressed
to the International Representatives, in which each such person agrees not
to offer, sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce an offering of, any shares of Common Stock
beneficially owned by such person or any securities convertible into, or
exchangeable for, shares of Common Stock for a period of 120 days following
the Execution Time without the prior consent of Salomon Brothers Inc, other
than shares of Common Stock disposed of as bona fide gifts or by act of
law.
(i) Prior to the Closing Date, the Company shall have furnished to
the International Representatives such further information, certificates
and documents as the International Representatives may reasonably request.
(j) The Selling Stockholder shall have furnished to the International
Representatives the opinion of XxXxxxxx Xxxxxxxx, counsel for the Selling
Stockholder, dated the
-23-
Closing Date, in the form specified in Section 6(k) of the U.S.
Underwriting Agreement.
(k) The Selling Stockholder shall have furnished to the International
Representatives a certificate, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the Selling
Stockholder, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Prospectuses, any supplement to the Prospectuses and this Agreement and
that the representations and warranties of the Selling Stockholder in this
Agreement are true and correct in all material respects on and as of
Closing Date to the same effect as if made on the Closing Date.
(l) Other than the payment of the purchase price, all of the
conditions to consummating the Acquisition have been satisfied as of the
Closing Date.
(m) The closing of the purchase of the U.S. Securities to be issued
and sold by the Company and the Selling Stockholder pursuant to the U.S.
Underwriting Agreement shall occur concurrently with the closing described
herein.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and
counsel for the International Underwriters, this Agreement and all
obligations of the International Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the International
Representatives. Notice of such cancellation shall be given to the
Secretary of the Company and the Selling Stockholder in writing or by
telephone or telegraph confirmed in writing.
7. REIMBURSEMENT OF INTERNATIONAL UNDERWRITERS' EXPENSES. If
the sale of the Securities provided for herein is not consummated because
any condition to the obligations of the International Underwriters set
forth in Section 6 hereof is not satisfied, because of any termination
pursuant to Section 10 hereof or because of any refusal, inability or
failure on the part of the Company or the Selling Stockholder to perform
any agreement herein or comply with
-24-
any provision hereof other than by reason of a default by any of the
International Underwriters, the Company will reimburse the International
Underwriters severally upon demand for all reasonable out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that
shall have been incurred by them in connection with the proposed purchase
and sale of the Securities. If the Company is required to make any
payments to the International Underwriters under this Section 7 because of
the Selling Stockholder's refusal, inability or failure to satisfy any
condition to the obligations of the International Underwriters set forth in
Section 6, the Selling Stockholder shall reimburse the Company on demand
for all amounts so paid.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and the Selling Stockholder jointly and severally
agree to indemnify and hold harmless each International Underwriter, the
directors, officers, employees and agents of each International Underwriter
and each person who controls any International Underwriter within the
meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of
them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement for
the registration of the Securities as originally filed or in any amendment
thereof, or in any U.S. or International Preliminary Prospectus or in
either of the Prospectuses, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and agrees to reimburse each
such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action; PROVIDED, that the
Selling Stockholder shall not be responsible pursuant to this indemnity for
losses, claims, damages or liabilities arising out of or based upon any
such untrue statement or omission or allegation thereof based upon
information furnished by any party other than the Selling Stockholder or
for an amount in
-25-
excess of the proceeds to such Selling Stockholder from the sale of the
U.S. or International Underwritten Securities sold by it; PROVIDED,
HOWEVER, that the Company and the Selling Stockholder will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and
in conformity with written information furnished to the Company by or on
behalf of any International Underwriter through the International
Representatives specifically for inclusion therein; and PROVIDED, FURTHER,
that such indemnity with respect to any preliminary prospectus shall not
inure to the benefit of the International Underwriter (or any person
controlling the International Underwriter) from whom the person asserting
any such loss, claim, damage or liability purchased the Securities which
are the subject thereof if such person did not receive a copy of the
International Prospectus (or the International Prospectus as amended and
supplemented) at or prior to the confirmation of the sale of such
International Securities to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a material fact
contained in such preliminary prospectus was corrected in the International
Prospectus (or the International Prospectus as amended or supplemented)
provided that the Company shall have delivered the International
Prospectus, as amended or supplemented, to the International
Representatives on a timely basis to permit such delivery. This indemnity
agreement will be in addition to any liability which the Company or the
Selling Stockholder may otherwise have.
(b) Each International Underwriter severally agrees to indemnify and
hold harmless the Company, the Selling Stockholder, each of the Company's
directors, each of the Company's officers who signs the Registration
Statement, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Company and the Selling Stockholder to each
International Underwriter, but only with reference to written information
relating to such International Underwriter furnished to the Company by or
on behalf of such International Underwriter through the International
Representatives specifically for inclusion in the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition to
any liability which any International Underwriter may otherwise have. The
Company and the Selling Stockholder acknowledge that the
-26-
statements set forth in the last paragraph of the cover page, the first and
second paragraphs set forth on the inside front cover page and under the
heading "Underwriting" in any U.S. or International Preliminary Prospectus
and the Prospectuses constitute the only information furnished in writing
by or on behalf of the several International Underwriters for inclusion in
any U.S. or International Preliminary Prospectus or the Prospectuses, and
you, as the Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b) above
unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
the indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); PROVIDED, HOWEVER, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding
the indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the right
to employ separate counsel (including local counsel), and the indemnifying
party shall bear the reasonable fees, costs and expenses of such separate
counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict
of interest, (ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel
-27-
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action or
(iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An indemnifying
party will not, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to
such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Selling Stockholder,
jointly and severally, and the International Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively, "Losses") to which the
Company, the Selling Stockholder and one or more of the International
Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Selling Stockholder
on the one hand and by the International Underwriters on the other from the
offering of the Securities; PROVIDED, HOWEVER, that in no case shall any
International Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for
any amount in excess of the underwriting discount or commission applicable
to the Securities purchased by such International Underwriter hereunder.
If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Selling Stockholder,
jointly and severally, and the International Underwriters shall
contribute in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company and
the Selling Stockholder on the one hand and of the International
Underwriters on the other in connection with the statements or
omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company and the
-28-
Selling Stockholder shall be deemed to be equal to the total net proceeds
from the offering (after deducting expenses), and benefits received by the
International Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the
cover page of the International Prospectus. Relative fault shall be
determined by reference to whether any alleged untrue statement or omission
relates to information provided by the Company, the Selling Stockholder or
the International Underwriters. The Company, the Selling Stockholder and
the International Underwriters agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), 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. For
purposes of this Section 8, each person who controls an International
Underwriter within the meaning of either the Act or the Exchange Act and
each director, officer, employee and agent of an International Underwriter
shall have the same rights to contribution as such International
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall
have signed the Registration Statement and each director of the Company
shall have the same rights to contribution as the Company, subject in each
case to the applicable terms and conditions of this paragraph (d).
9. DEFAULT BY AN INTERNATIONAL UNDERWRITER. If any one or more
International Underwriters shall fail to purchase and pay for any of the
International Securities agreed to be purchased by such International
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining International Underwriters shall be obligated severally
to take up and pay for (in the respective proportions which the amount of
International Securities set forth opposite their names in Schedule I hereto
bears to the aggregate amount of Securities set forth opposite the names of all
the remaining International Underwriters) the International Securities which the
defaulting International Underwriter or Underwriters agreed but failed to
purchase; PROVIDED, HOWEVER, that in the event that the aggregate amount of
International Securities which the defaulting International Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of
-29-
the aggregate amount of Securities set forth in Schedule I hereto, the remaining
International Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the International Securities, and if
such non-defaulting International Underwriters do not purchase all the
International Securities, this Agreement will terminate without liability to any
non-defaulting International Underwriter, the Selling Stockholder or the
Company. In the event of a default by any International Underwriter as set
forth in this Section 9, the Closing Date shall be postponed for such period,
not exceeding seven days, as the International Representatives shall determine
in order that the required changes in the Registration Statement and the
International Prospectus or in any other documents or arrangements may be
effected. Nothing contained in this Agreement shall relieve any defaulting
International Underwriter of its liability, if any, to the Company, the Selling
Stockholder and any non-defaulting Underwriter for damages occasioned by its
default hereunder.
10. TERMINATION. This Agreement shall be subject to termination in
the absolute discretion of the International Representatives, by notice given to
the Company prior to delivery of and payment for the International Securities,
if prior to such time (i) trading in the Company's Common Stock shall have been
suspended by the Commission or the Nasdaq National Market or trading in
securities generally on the New York Stock Exchange or the Nasdaq National
Market shall have been suspended or limited or minimum prices shall have been
established on the New York Stock Exchange or the the Nasdaq National Market,
(ii) a banking moratorium shall have been declared either by Federal or New York
State authorities or (iii) there shall have occurred any outbreak or escalation
of hostilities, declaration by the United States of a national emergency or war
or other calamity or crisis the effect of which on financial markets is such as
to make it, in the judgment of the International Representatives, impracticable
or inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the International Prospectus (exclusive of any supplement
thereto).
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers, of the Selling Stockholder and of the International
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of any
International Underwriter, the Selling Stockholder or the Company or any of the
officers, directors or controlling persons referred to in Section 8 hereof, and
will survive
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delivery of and payment for the International Securities. The provisions of
Sections 7 and 8 hereof shall survive the termination or cancellation of this
Agreement.
12. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the International Representatives,
will be mailed, delivered or telegraphed and confirmed to them, care of Salomon
Brothers International Limited, at Victoria Plaza, 000 Xxxxxxxxxx Xxxxxx Xxxx,
Xxxxxx XX0X XXX XXXXXXX; or, if sent to the Company, will be mailed, delivered,
or telegraphed and confirmed to it at 0000 Xxxxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxx 00000, Attention: Xxxxxx X. XxXxxxxx, Esq.; or if sent to the Selling
Stockholder, will be mailed, delivered, or telegraphed and confirmed to it at
1700, 000 0xx Xxxxxx XX, Xxxxxxx, Xxxxxxx X0X 0X0, Xxxxxx, Attention: Xx.
Xxxxxxx Brebber.
13. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder.
14. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS.
15. COUNTERPARTS. This Agreement may be executed in more than one
counterpart each of which shall be deemed an original and each of which shall
constitute one and the same instrument.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and send us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the
Company, the Selling Stockholder and the several International Underwriters.
Very truly yours,
FOREST OIL CORPORATION
By:
-------------------------------------
Name:
Title:
SAXON PETROLEUM INC.
the Selling Stockholder
By:
------------------------------------
Name:
Title: Attorney-in-Fact
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
SALOMON BROTHERS INTERNATIONAL LIMITED
XXXXXX, READ & CO. INC.
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
By: Salomon Brothers International Limited
By:
------------------------------
For themselves and the other
several International Underwriters
named in Schedule I to the foregoing
Agreement.
SCHEDULE I
Number of Shares
of International
Underwritten
Securities to be
International Underwriters Purchased
-------------------------- -----------------
Salomon Brothers International Limited . .
Xxxxxx, Read & Co. Inc. . . . . . . . . .
Xxxxxx Xxxxxxx & Co. International
Limited . . . . . . . . . . . . . . . . .
---------
Total . . . . . . 1,800,000
---------
SCHEDULE II
SUBSIDIARIES OF FOREST OIL CORPORATION
DELAWARE SUBSIDIARIES
Forest I Development Company(2)
Forest Merger Corporation
Forest Oil of Turkey, Ltd.
Forest Pipeline Company
CANADA SUBSIDIARIES
Forest Canada I Development Ltd.
Forest Oil of Canada, Ltd.
Effective December 20, 1995, Forest Oil Corporation acquired a 49% voting
interest in Saxon Petroleum Inc., an Alberta corporation.
Effective December 15, 1995, Forest Oil Corporation incorporated 3189490 Canada
Ltd., a Canadian corporation.
-------------------------
(2) Oklatex Corp. (a Texas corporation) is a wholly owned subsidiary of
Forest I Development Company.
EXHIBIT A
Letterhead of officer or director of
Forest Oil Corporation
FOREST OIL CORPORATION
PUBLIC OFFERING OF COMMON STOCK
January __, 1996
Salomon Brothers Inc
Xxxxxx, Read & Co. Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Chase Securities, Inc.
As Representatives of the several U.S. Underwriters
and
Salomon Brothers International Limited
Xxxxxx, Read & Co. Inc.
Xxxxxx Xxxxxxx & Co. International Limited
As Representatives of the several
International Underwriters,
c/o Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
This letter is being delivered to you in connection with the proposed
U.S. Underwriting Agreement (the "U.S. Underwriting Agreement") and
International Underwriting Agreement (together with the U.S. Underwriting
Agreement the "Underwriting Agreements"), between Forest Oil Corporation, a New
York corporation (the "Company"), a certain Selling Stockholder named therein
and each of you as respective representatives of a group of U.S. Underwriters
and International Underwriters, as the case may be, named therein (collectively,
the "Underwriters"), relating to an underwritten public offering of Common
Stock, $.10 par value (the "Common Stock"), of the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreements, the undersigned agrees not to offer, sell or contract
to sell, or otherwise dispose of, directly or indirectly, or announce an
offering of, any shares of Common Stock beneficially owned by the undersigned or
any securities convertible into, or exchangeable for, shares of Common Stock for
a period of 120 days following the day on which
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the Underwriting Agreements are executed without the prior consent of Salomon
Brothers Inc and Salomon Brothers International Limited, other than shares of
Common Stock disposed of as bona fide gifts or by act of law.
-3-
If for any reason the Underwriting Agreements shall be terminated
prior to the Closing Date (as defined in the Underwriting Agreements), the
agreement set forth above shall likewise be terminated.
Sincerely,
_________________________________
Name:
Title:
Address:
