EXHIBIT 1.1
10,000,000 Shares
UNITED STATES FILTER CORPORATION
Common Stock
UNDERWRITING AGREEMENT
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December [ ], 1996
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
DEUTSCHE XXXXXX XXXXXXXX INC.
NATWEST SECURITIES LIMITED
SALOMON BROTHERS INC
XXXXX XXXXXX INC.
As representatives of the several
U.S. Underwriters named in Schedule II hereto
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
XXXXXX XXXXXXXX & CO., LIMITED
NATWEST SECURITIES LIMITED
SALOMON BROTHERS INTERNATIONAL LIMITED
XXXXX XXXXXX INC.
As representatives of the several
International Managers named in Schedule III hereto
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
United States Filter Corporation, a Delaware corporation (the
"Company"), confirms its agreement with (i) the several U.S. underwriters listed
in Schedule I hereto (the "U.S. Underwriters"), for whom Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation ("DLJ"), Deutsche Xxxxxx Xxxxxxxx Inc., NatWest
Securities Limited ("NatWest"), Salomon Brothers Inc and Xxxxx Xxxxxx Inc.
("Xxxxx Xxxxxx") have been duly authorized to act as representatives (the "U.S.
Representatives"), and (ii) the several International Managers named in Schedule
II hereto (the "International Managers"), for whom DLJ, Xxxxxx Xxxxxxxx & Co.,
Limited, NatWest, Salomon Brothers International Limited and Xxxxx Xxxxxx have
been duly authorized to act as representatives (the "International
Representatives" and, together with the U.S. Representatives, the
"Representatives"). The U.S. Underwriters and the International Managers are
hereinafter collectively referred to as the "Underwriters." The agreement is as
follows:
1. The Shares. Subject to the terms and conditions herein set
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forth, the Company proposes to sell to the Underwriters an aggregate of
10,000,000 shares (the "Firm Shares") of Common Stock, $.01 par value per share,
of the Company (the "Common Stock") as follows: 8,000,000 Firm Shares (the
"U.S. Shares") of Common Stock will be sold to the U.S. Underwriters in
connection with the offering and sale of such U.S. Shares in the United States
and Canada to United States and Canadian Persons (as such terms are defined in
the Agreement between U.S. Underwriters and International Managers of even date
herewith), and 2,000,000 Firm Shares (the "International Shares") will be sold
to the International Managers in connection with the offering and sale of such
International Shares outside the United States and Canada to persons other than
United States and Canadian Persons.
The Company also proposes to sell to the U.S. Underwriters an
aggregate of not more than 654,206 additional shares of Common Stock (the
"Company Additional Shares"), and Xxxx Xxxxxxx Capital Growth Fund IIB Limited
Partnership, Xxxx Xxxxxxx Capital Growth Fund III Limited Partnership, Xxxx X.
Xxxxxxxxx, as Trustee of the 1990 Family Trust, The Black Xxxxxxx Company and
CGW Southeast Partners I, L.P. (collectively, the "Selling Stockholders")
propose to sell to the U.S. Underwriters an aggregate of not more than 845,794
additional shares of Common Stock (the "Selling Stockholders Additional Shares"
and, together with the Company Additional Shares, the "Additional Shares") as
set forth on Schedule I, if requested by the U.S. Underwriters as pro-
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vided in Section 3 hereof. The Firm Shares and the Additional Shares are herein
collectively called the "Shares."
2. Registration Statement and Prospectus. The Company has prepared
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and filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated pursuant thereto
(collectively, the "Act"), a registration statement on Form S-3 (No. 333-[ ]),
including a preliminary prospectus, subject to completion, relating to the
Shares. The registration statement contains two prospectuses to be used in
connection with the offering and sale of the Shares: the U.S. prospectus, to be
used in connection with the offering and sale of Shares in the United States and
Canada to United States and Canadian Persons, and the international prospectus,
to be used in connection with the offering and sale of Shares outside the United
States and Canada to persons other than United States and Canadian Persons. The
international prospectus is identical to the U.S. prospectus except for the
outside front and back cover pages. The registration statement, as amended at
the time it becomes effective or, if a post-effective amendment is filed with
respect thereto, as amended by such post-effective amendment at the time of its
effectiveness (including in each case all documents incorporated or deemed
incorporated by reference therein, if any, all financial statements and
exhibits, and the information, if any, contained in a prospectus or term sheet
subsequently filed with the Commission pursuant to Rule 424(b) under the Act and
deemed to be a part of the registration statement at the time of its
effectiveness pursuant to Rule 430A or Rule 434 under the Act (as applicable)),
and any additional registration statement relating to the issuance of additional
shares of Common Stock filed pursuant to Rule 462(b) under the Act, is
hereinafter referred to as the "Registration Statement"; and the U.S. prospectus
and the international prospectus, constituting a part of the Registration
Statement at the time it became effective, or such revised U.S. or international
prospectus as shall be provided to the Underwriters for use in connection with
the offering of the Shares that differs from the U.S. or international
prospectus on file with the Commission at the time the Registration Statement
became effective, including in each case all documents incorporated or deemed
incorporated by reference therein, if any, and all financial statements, and
including any U.S. or international prospectus subject to completion and any
term sheet meeting the requirements of Rule 434(c), filed pursuant to Rule
424(b), in the respective forms used to confirm sales of the Shares, whether or
not filed with the Commission pursuant to Rule 424(b) under the Act, are
hereinafter referred to collectively as the "Prospectus."
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3. Agreements to Sell and Purchase. On the basis of the
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representations and warranties contained in this Agreement, and subject to the
terms and conditions hereof, the Company agrees to issue and sell to each of the
U.S. Underwriters, and each of the U.S. Underwriters agrees, severally and not
jointly, to purchase from the Company, at a price per share of $[ ] (the
"Purchase Price") the aggregate number of Firm Shares set forth opposite the
name of such U.S. Underwriter in Schedule II hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to issue
and sell to each of the International Managers, and each of the International
Managers agrees, severally and not jointly, to purchase from the Company at the
Purchase Price the aggregate number of Firm Shares set forth opposite the name
of such International Manager in Schedule III hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to the terms and conditions hereof, (i) the Company
agrees to issue and sell to the U.S. Underwriters, and the U.S. Underwriters
shall have a right to purchase from the Company, severally and not jointly, from
time to time, up to an aggregate of 654,206 Additional Shares at the Purchase
Price, and (ii) the Selling Stockholders agree to sell to the U.S. Underwriters,
and the U.S. Underwriters shall have a right to purchase from the Selling
Stockholders, in each case severally and not jointly, from time to time, up to
an aggregate of 845,794 Additional Shares at the Purchase Price. Additional
Shares may be purchased as provided in Section 4 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 U.S. Underwriter,
severally and not jointly, agrees to purchase the number of Additional Shares
(subject to such adjustments to eliminate fractional shares as the
Representatives may determine) which bears the same proportion to the total
number of Additional Shares to be purchased as the number of Firm Shares set
forth opposite the name of such U.S. Underwriter in Schedule I hereto bears to
the total number of Firm Shares. If any Additional Shares are to be purchased,
such Additional Shares will be purchased by the U.S. Underwriters first from the
Selling Stockholders Additional Shares, and after all of the Selling
Stockholders Additional Shares have been so purchased, then from the Company
Additional Shares.
The Company hereby agrees and shall, concurrently with the execution
of this Agreement, deliver an agreement executed by the Company and by each of
its directors, officers and stockholders listed on Schedule IV hereto,
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pursuant to which each such person agrees not to, directly or indirectly, offer,
sell, contract to sell, grant any option to purchase, or otherwise dispose of
any shares of Common Stock or any securities convertible into or exercisable or
exchangeable for, or warrants, options or rights to purchase or acquire, Common
Stock or in any other manner transfer all or a portion of the economic
consequences associated with the ownership of any Common Stock, or enter into
any agreement to do any of the foregoing, except pursuant to this Agreement (or
any other underwriting agreement in connection with which DLJ acts as lead
managing underwriter), for a period of 90 days after the date of this Agreement,
without the prior written consent of DLJ. Notwithstanding the foregoing, during
such period (i) the Company may grant stock options pursuant to the Company's
existing stock option plans; (ii) the Company may issue shares of its Common
Stock upon the exercise of an option or warrant or the conversion of a security
outstanding on the date hereof; and (iii) the Company may issue not more than
[ ] shares of its Common Stock in connection with acquisitions of
businesses or assets from third parties covered by its Registration Statement on
Form S-4 (No. 33-[ ]) and not more than [ ] shares of its Common
Stock pursuant to Regulation S of the Commission.
4. Delivery and Payment. Delivery to you of and payment for the
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Firm Shares shall be made at 9:00 A.M., New York City time, on the third
business day, unless otherwise permitted by the Commission pursuant to Rule
15c6-1 under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Exchange Act")
(such time and date being referred to as the "Closing Date") following the date
of the public offering of the Firm Shares as advised by the Representatives to
the Company, at such place as you shall reasonably designate. The Closing Date
and the location of delivery of the Firm Shares may be varied by agreement
between the Representatives and the Company.
Delivery to the U.S. Underwriters of and payment for any Additional
Shares to be purchased by the U.S. Underwriters shall be made at such place as
the U.S. Representatives shall designate in writing, at 9:00 A.M., New York City
time, on such date or dates (individually, an "Option Closing Date"), which may
be the same as the Closing Date but shall in no event be earlier than the
Closing Date, as shall be specified in a written notice from the U.S.
Representatives to the Company and the Selling Stockholders of the U.S.
Underwriters' determination to purchase a number, specified in said notice, of
Additional Shares. The date or dates specified in any such notice shall be a
business day no later than ten business days after such notice has been given
and no earlier than
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two business days after such notice has been given. Any such notice may be
given at any time not later than 30 days after the date of this Agreement. Any
Option Closing Date and the location of delivery of and payment for the
Additional Shares may be varied by agreement among the U.S. Representatives, the
Company and the Selling Stockholders.
Certificates for the Shares shall be registered in such names and
issued in such denominations as you shall request in writing not later than two
full business days prior to the Closing Date or the applicable Option Closing
Date, as the case may be, and shall be made available to you at such place as
you shall reasonably request for inspection not later than 9:30 A.M., New York
City time, on the business day next preceding the Closing Date or the applicable
Option Closing Date, as the case may be. Certificates in definitive form
evidencing the Shares (or such other method of delivery as may be acceptable to
you) shall be delivered to you on the Closing Date or the applicable Option
Closing Date, as the case may be, with any transfer taxes thereon duly paid by
the Company, in the case of the Company Additional Shares, and the Selling
Stockholders, in the case of the Selling Stockholders Additional Shares, for the
respective accounts of the Underwriters against payment of the Purchase Price by
wire transfer payable in same day funds, to an account or accounts designated in
writing by the Company and the Selling Stockholders.
5. Agreements of the Company. The Company agrees with each of the
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Underwriters and the Selling Stockholders that:
(a) It will, if the Registration Statement has not heretofore become
effective under the Act, file an amendment to the Registration Statement
or, if necessary pursuant to Rule 430A under the Act, a post-effective
amendment to the Registration Statement, in each case as soon as
practicable after the execution and delivery of this Agreement, and will
use its best efforts to cause the Registration Statement or such post-
effective amendment to become effective at the earliest possible time. The
Company will comply fully and in a timely manner with the applicable
provisions of Rule 424, Rule 430A, and, if applicable, Rule 434, and Rule
462, under the Act.
(b) It will advise you and the Selling Stockholders promptly and, if
requested by you, confirm such advice in writing, (i) when the Registration
Statement has become effective, if and when the Prospectus is sent for
filing pursuant to Rule 424 under the Act and when any post-
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effective amendment to the Registration Statement becomes effective, (ii)
of the receipt of any comments from the Commission or any state securities
commission or regulatory authority that relate to the Registration
Statement or requests by the Commission or any state securities commission
or regulatory authority for amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional information,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement, or of the suspension of
qualification of the Shares for offering or sale in any jurisdiction, or
the initiation of any proceeding for such purpose by the Commission or any
state securities commission or other regulatory authority, and (iv) of the
happening of any event during such period as in your judgment the
Underwriters are required to deliver a prospectus in connection with sales
of the Shares which makes any statement of a material fact made in the
Registration Statement untrue or which requires the making of any additions
to or changes in the Registration Statement (as amended or supplemented
from time to time) in order to make the statements therein not misleading
or that makes any statement of a material fact made in the Prospectus (as
amended or supplemented from time to time) untrue or which requires the
making of any additions to or changes in the Prospectus (as amended or
supplemented from time to time) in order to make the statements therein, in
light of the circumstances under which they were made, not misleading. The
Company shall use its best efforts to prevent the issuance of any stop
order by the Commission or order suspending the qualification or exemption
of the Shares under any state securities or Blue Sky laws, and, if at any
time the Commission shall issue any stop order suspending the effectiveness
of the Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or
exemption of the Shares under any state securities or Blue Sky laws, the
Company shall use every reasonable effort to obtain the withdrawal or
lifting of such order at the earliest possible time.
(c) It will furnish to you without charge five (5) copies of the
signed copies of the Registration Statement as first filed with the
Commission and of each amendment to it, including all exhibits filed
therewith, and will furnish to you such number of conformed copies of the
Registration Statement as so filed and of each amendment to it, without
exhibits, as you may reasonably request.
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(d) It will not file any amendment or supplement to the Registration
Statement, whether before or after the time when it becomes effective, or
make any amendment or supplement to the Prospectus, of which you shall not
previously have been advised and provided a copy within two business days
prior to the filing thereof or to which you shall reasonably object; and it
will prepare and file with the Commission, promptly upon your reasonable
request, any amendment to the Registration Statement or supplement to the
Prospectus which may be necessary or advisable in connection with the
distribution of the Shares by you, and will use its best efforts to cause
any amendment to the Registration Statement to become effective promptly.
(e) Promptly after the Registration Statement becomes effective, and
from time to time thereafter for such period as in the opinion of counsel
for the Underwriters a prospectus is required by law to be delivered in
connection with sales of the Shares by the Underwriters, it will furnish to
each Underwriter and dealer without charge as many copies of the Prospectus
(and of any amendment or supplement to the Prospectus) as such Underwriters
and dealers may reasonably request for the purposes contemplated by the
Act. So long as the same is delivered or used pursuant to applicable law,
the Company consents to the use of the Prospectus and any amendment or
supplement thereto by any Underwriter or any dealer, both in connection
with the offering or sale of the Shares and for such period of time
thereafter as the Prospectus is required by the Act or the Exchange Act to
be delivered in connection therewith.
(f) If during such period specified in paragraph (e) any event shall
occur as a result of which, in the opinion of counsel for the Underwriters,
it becomes necessary to amend or supplement the Prospectus in order to make
the statements therein, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Prospectus to comply with any law, it
will promptly prepare and file with the Commission an appropriate amendment
or supplement 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 so delivered, be misleading, and will comply with
law, and will furnish to each Underwriter and dealer without charge such
number of copies thereof as such Underwriters and dealers may reasonably
request.
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(g) Prior to any public offering of the Shares, it will cooperate with
you and your counsel in connection with the registration or qualification
of the Shares for offer and sale by the Underwriters under the state
securities or Blue Sky laws of such jurisdictions as you may reasonably
request (provided, that the Company shall not be obligated to qualify as a
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foreign corporation in any jurisdiction in which it is not so qualified or
to take any action that would subject it to general consent to service of
process in any jurisdiction or subject it to taxation generally in respect
of doing business in any jurisdiction in which it is not now so subject).
The Company will continue such qualification in effect so long as required
by law for distribution of the Shares. The Company will inform the Florida
Department of Banking and Finance if, prior to the completion of the
distribution of the Shares by the Underwriters, the Company commences
engaging in business with the government of Cuba or with any person or
affiliate located in Cuba. Such information will be provided within 90
days of the commencement thereof or after a change to any such previously
reported information.
(h) It will make generally available to its security holders as soon
as reasonably practicable a consolidated earnings statement covering a
period of at least twelve months beginning after the "effective date" (as
defined in Rule 158 under the Act) of the Registration Statement (but in no
event commencing later than 90 days after such date) which shall satisfy
the provisions of Section 11(a) of the Act and Rule 158 thereunder and will
advise you in writing when such statement has been so made available.
(i) During the period of five years after the date of this Agreement,
(i) it will furnish as soon as reasonably practicable after the end of each
fiscal year to the record holders of its Common Stock a financial report of
the Company and its subsidiaries on a consolidated basis (and a similar
financial report of all unconsolidated subsidiaries, if any), all such
financial reports to include a consolidated balance sheet, a consolidated
statement of operations, a consolidated statement of cash flows and a
consolidated statement of stockholders' equity as of the end of and for
such fiscal year, together with comparable information as of the end of and
for the preceding year, certified by independent certified public
accountants, and (ii) it will make generally available as soon as
reasonably practicable after the end of each quarterly period (except for
the last quarterly period of each fiscal year) to such holders, a
consolidated balance
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sheet, a consolidated statement of operations and a consolidated statement
of cash flows (and similar financial reports of all unconsolidated
subsidiaries, if any) as of the end of and for such period, and for the
period from the beginning of such year to the close of such quarterly
period, together with comparable information for the corresponding periods
of the preceding year.
(j) During the period referred to in paragraph (i), it will furnish
to you as soon as available a copy of each report or other publicly
available information of the Company mailed to the holders of Common Stock
or filed with the Commission and such other publicly available information
concerning the Company and its subsidiaries as you may reasonably request.
(k) Whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, it will pay and be responsible
for all costs, expenses and fees in connection with or incident to (i) the
printing, processing, filing, distribution and delivery under the Act or
the Exchange Act of the Registration Statement (including financial
statements and exhibits), each preliminary prospectus, the Prospectus and
all amendments or supplements thereto, (ii) the printing and delivery of
this Agreement, any memoranda describing state securities or Blue Sky laws
and all other agreements, memoranda, correspondence and other documents
printed, distributed and delivered in connection with the offering of the
Shares (including in each case any disbursements of counsel for the
Underwriters relating to such printing and delivery), (iii) the
registration with the Commission and the issuance and delivery of the
Shares, (iv) the registration or qualification of the Shares for offer and
sale under the securities or Blue Sky laws of the jurisdictions referred to
in paragraph (g) above (including, in each case, the fees and disbursements
(including filing fees) of counsel relating to such registration or
qualification and blue sky memoranda relating thereto), (v) furnishing such
copies of the Registration Statement, Prospectus and preliminary
prospectus, and all amendments and supplements to the Underwriters or any
dealers to whom Shares may be sold prior to or during the period specified
in paragraph 5(e), as may be reasonably requested by you, (vi) any filing
fees incurred in connection with the filing, registration and clearance
with the National Association of Securities Dealers, Inc. (the "NASD") in
connection with the offering of the Shares, (vii) the listing of the Shares
on the New York Stock Exchange, and (viii) the performance by the Company
of its other
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obligations under this Agreement, the cost of its personnel and other
internal costs and the cost of printing and engraving the certificates
representing the Shares; provided, that the Company shall have no liability
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or obligation with respect to any fees or expenses of counsel to the
Underwriters, except as provided in clause (iv) above, or for any costs of
personnel or other internal costs of the Underwriters.
(l) It will use the proceeds from the sale of the Shares in the manner
described in the Prospectus under the caption "Use of Proceeds."
(m) It will cause the Shares to be listed on the New York Stock
Exchange and will use its reasonable best efforts to maintain such listing
for a period of five years after the effective date of the Registration
Statement.
(n) It will use all reasonable efforts to do and perform all things
required or necessary to be done and performed under this Agreement by it
prior to or after the Closing Date or any Option Closing Date, as the case
may be, and to satisfy all conditions precedent on its part to the delivery
of the Shares.
6. Representations and Warranties of the Company. The Company
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represents and warrants to each Underwriter and the Selling Stockholders that:
(a) The Company and the transactions contemplated by this Agreement
meet the requirements for using Form S-3 under the Act. The Registration
Statement has become effective; no stop order suspending the effectiveness
of the Registration Statement is in effect, and no proceedings for such
purpose are pending before or threatened by the Commission.
(b) (i) Each 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, (ii) the Registration
Statement and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the requirements of
the Act and (iii) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue state-
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ment 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 (b) do not apply to statements or omissions in
the Registration Statement or the Prospectus based upon and in conformity
with (x) information relating to any Underwriter furnished to the Company
in writing by such Underwriter through you expressly for use therein or (y)
any Selling Stockholder Information (as defined in Section 11 hereof). The
Company acknowledges for all purposes of this Agreement (including this
paragraph and Section 8 hereof) that the statements with respect to price
and underwriting discount and the last paragraph, all on the cover page,
and paragraphs 1, 4, 7, 8, 9, 10 and 12 under the caption "Underwriting" in
the Prospectus constitute the only written information furnished to the
Company by the Underwriters for use in the Registration Statement or the
Prospectus or any preliminary prospectus, or any amendment or supplement to
them (the "Underwriter Information"), and that the Underwriters shall not
be deemed to have provided any information (and therefore are not
responsible for any statement or omission) pertaining to any arrangement or
agreement with respect to any parties other than the Underwriters and that
the Selling Stockholders Information is the only written information
furnished to the Company by the Selling Stockholders for use in the
Registration Statement or the Prospectus or any preliminary prospectus (or
any amendment or supplement to them) and that the Selling Stockholders
shall not be deemed to have provided any information (and therefore is not
responsible for any statement or omission) pertaining to any arrangement or
agreement with respect to any party other than the Selling Stockholders.
(c) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Act, complied when so filed in all material
respects with the requirements of the Act; and did not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(d) The Company and each of its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation and has the corporate power
and authority to carry on its business as it is currently being conducted
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and to own, lease and operate its properties, and each is duly qualified
and is in good standing as a foreign corporation authorized to do business
in each jurisdiction in which the nature of its business or its ownership
or leasing of property requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, cash flow, business
affairs or business prospects of the Company and its subsidiaries, taken as
a whole (the foregoing exception herein defined as a "Material Adverse
Effect").
(e) All of the outstanding shares of capital stock of, or other
ownership interests in, each of the Company's subsidiaries have been duly
authorized and validly issued and are fully paid and nonassessable, and,
except for the pledge to [THE FIRST NATIONAL BANK OF BOSTON AND FIRST
INTERSTATE BANK OF CALIFORNIA, OTHERS?] (the "Banks") of capital stock of
certain of the Company's subsidiaries [PURSUANT TO THE COMPANY'S CREDIT
FACILITIES WITH THE BANKS (THE "CREDIT FACILITIES") -- DEFINE NEW CREDIT
FACILITIES AS WILL BE DEFINED IN THE REGISTRATION STATEMENT], are owned by
the Company (except as provided in the last sentence of this paragraph
(e)), free and clear of any security interest, claim, lien, encumbrance or
adverse interest of any nature. The Company owns all of the outstanding
capital stock of each of its subsidiaries, except with respect to
subsidiaries that, when taken as a whole, do not account for a material
proportion of the Company's business, operations or assets, and the loss of
which would not result in a Material Adverse Effect upon the Company.
(f) All the issued and outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid,
nonassessable and, except as otherwise set forth in the Prospectus, not
subject to any preemptive or similar rights; the Shares have been duly
authorized for issuance and sale to the Underwriters pursuant to this
Agreement and, when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth herein, will be
validly issued, fully paid and nonassessable; and the issuance of the
Shares by the Company will not be subject to preemptive or other similar
rights.
(g) The authorized capital stock of the Company, including the Common
Stock, conforms to the description thereof contained in or incorporated by
reference into the Prospectus.
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(h) Neither the Company nor any of its subsidiaries is in violation of
its respective charter or by-laws or other equivalent instruments, as the
case may be, or, except as such as would not have a Material Adverse
Effect, in default in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or any other evidence of
indebtedness or in any other agreement, lease, contract, indenture or
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of its subsidiaries or their respective property is bound,
and there exists no condition which, with the passage of time or otherwise,
would constitute such a default under any such document or instrument.
(i) The execution, delivery and performance of this Agreement,
compliance by the Company with all the provisions hereof and the
consummation of the transactions contemplated hereby will not require any
consent, approval, authorization or other order of any court, regulatory
body, administrative agency or other governmental body (except as such may
be required under the securities or Blue Sky laws of the various states)
and will not conflict with or constitute a breach of any of the terms or
provisions of, or a default (with the passage of time or otherwise) under,
the charter or by-laws or other equivalent instruments, as the case may be,
of the Company or any of its subsidiaries or, except such as would not have
a Material Adverse Effect, any agreement, lease, contract, indenture or
other instrument to which it or any of its subsidiaries is a party or by
which it or any of its subsidiaries or their respective property is bound,
or violate or conflict with any laws, administrative regulations or rulings
or court decrees applicable to the Company, any of its subsidiaries or
their respective property.
(j) Except as would not result in a Material Adverse Effect, there are
no legal or governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of which any of their respective property is
subject, and, to the best of the Company's knowledge, no such proceedings
are threatened or contemplated. No contract or document of a character
required to be described in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration Statement is not so described
or filed as required.
(k) Except as disclosed or incorporated by reference in the
Prospectus, neither the Company nor any of its subsidiaries nor, to the
best
14
knowledge of the Company, any other person or entity for whom either is or
may be liable is in violation of any Federal, state, local, provincial or
foreign laws or regulations relating to pollution or protection of human
health or the environment (including, without limitation, ambient air,
surface water, ground water, land surface or subsurface strata), including,
without limitation, laws and regulations relating to emissions, discharges,
releases or threatened releases of chemicals, pollutants, contaminants,
wastes, toxic substances, hazardous substances, petroleum or petroleum
products, asbestos or asbestos-containing materials, or polychlorinated
biphenyls ("Materials of Environmental Concern"), or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Materials of Environmental Concern
(collectively, "Environmental Laws"), which violation would have a Material
Adverse Effect or would otherwise require disclosure in the Prospectus
pursuant to Item 103 of Regulation S-K under the Act ("Item 103").
"Violation" includes, but is not limited to, noncompliance with any permit
or other governmental authorization required under applicable Environmental
Laws and noncompliance with the terms and conditions of any such permit or
authorization.
(l) Except as disclosed or incorporated by reference in the
Prospectus, neither the Company nor any of its subsidiaries has received
any communication (written or, to the knowledge of the Company or any of
its subsidiaries, oral), whether from a governmental authority, citizens'
group, employee or otherwise, asserting that the Company or any of its
subsidiaries or any other person or entity for whom either is or may be
liable is not in compliance with any Environmental Laws or permit or
authorization required under applicable Environmental Laws where such
failure to comply would have a Material Adverse Effect or would otherwise
require disclosure in the Prospectus pursuant to Item 103, and there are no
circumstances that may prevent or interfere with such full compliance in
the future, except where failure so to comply would not have a Material
Adverse Effect.
(m) Except as disclosed or incorporated by reference in the
Prospectus, there is no claim, action, cause of action, investigation or
notice (written or oral) by any person or entity alleging potential
liability (including, without limitation, potential liability for
investigatory costs, natural resources damages, property damages, personal
injuries or penalties) arising out of, based on or resulting from (i) the
presence in or
15
release into the environment of any Materials of Environmental Concern at
any location owned, leased or operated, now or in the past, by the Company
or any of its subsidiaries or, to the best knowledge of the Company, any
other person or entity for whom either is or may be liable, or (ii)
circumstances forming the basis of any violation or alleged violation of
any Environmental Law (collectively, "Environmental Claims") pending or
threatened against the Company or any of its subsidiaries or, to the best
knowledge of the Company, any other person or entity whose liability for
any Environmental Claim the Company or any of its subsidiaries has retained
or assumed either contractually or by operation of law, except any such
matter that would not have a Material Adverse Effect or would not otherwise
require disclosure in the Prospectus pursuant to Item 103.
(n) Except as disclosed or incorporated by reference in the
Prospectus, there are no past or present actions, activities,
circumstances, conditions, events or incidents, including, without
limitation, the release, emission, discharge, presence or disposal of any
Materials of Environmental Concern, that could form the basis of any
Environmental Claim against the Company or any of its subsidiaries with
respect to property owned, leased or operated by or for the Company or any
of its subsidiaries, now or in the past, or, to the best knowledge of the
Company, against any person or entity whose liability for any Environmental
Claim the Company or any of its subsidiaries has retained or assumed either
contractually or by operation of law, except any such matter that would not
have a Material Adverse Effect or would not otherwise require disclosure in
the Prospectus pursuant to Item 103.
(o) In the ordinary course of its business, the Company addresses its
environmental compliance obligations with respect to the business,
operations and properties of the Company and its subsidiaries, in the
course of which it identifies and evaluates, as appropriate, associated
costs and liabilities. On the basis of such procedures, except for costs
and liabilities heretofore incurred and reflected in the Company's
financial statements as set forth or incorporated by reference in the
Registration Statement, the Company has reasonably concluded that such
associated costs and liabilities would not, singly or in the aggregate,
have a Material Adverse Effect.
(p) Except as otherwise set forth or incorporated by reference in the
Prospectus or such as would not, singly or in the aggregate, have a
16
Material Adverse Effect, the Company and each of its subsidiaries has good
and marketable title, free and clear of all liens, claims, encumbrances and
restrictions, except liens for taxes not yet due and payable and
restrictions on the Company's ability to encumber its assets contained in
its [CREDIT FACILITIES] with the Banks, to all property and assets
described in the Registration Statement as being owned by it. All leases
to which the Company or any of its subsidiaries is a party are valid and
binding and, except as would not have a Material Adverse Effect, no default
has occurred or is continuing thereunder; and the Company and its
subsidiaries enjoy peaceful and undisturbed possession under all such
leases to which any of them is a party as lessee.
(q) The Company and each of its subsidiaries maintains insurance in
amounts and with limits and coverage which the Company in good xxxxx xxxxx
appropriate.
(r) Each of the accountants who certified the financial statements and
supporting schedules included in the Registration Statement is an
independent public accountant as required by the Act.
(s) The financial statements, together with related schedules and
notes, as set forth or incorporated by reference in the Registration
Statement and the Prospectus (and any amendment or supplement thereto),
present fairly the consolidated financial position, results of operations
and changes in financial position of the Company and its subsidiaries at
the respective dates or for the respective periods to which they apply;
such statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved, except as disclosed therein; and
the other financial and statistical information and data set forth in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto) is, in all material respects, fairly presented and prepared on a
basis consistent with such financial statements and the books and records
of the Company. The pro forma financial information included in the
--- -----
Prospectus presents fairly the information shown therein and has been
prepared in accordance with the relevant accounting requirements of
Regulation S-X. In the opinion of the Company, the assumptions used in the
preparation of the pro forma financial information are reasonable and the
adjustments used therein are appropriate to give effect to the transactions
or circumstances referred to therein.
17
(t) Except as would not result in a Material Adverse Effect, (i) the
Company and each of its subsidiaries has such permits, licenses, franchises
and authorizations of governmental or regulatory authorities ("permits") as
are necessary to own, lease and operate its respective properties and to
conduct its business in the manner described or incorporated by reference
in the Prospectus, subject to such qualifications as may be set forth or
incorporated by reference in the Prospectus; (ii) the Company and each of
its subsidiaries has fulfilled and performed all of its obligations with
respect to such permits and no event has occurred which allows, or after
notice or lapse of time or both would allow, revocation or termination
thereof or results in any other impairment of the rights of the holder of
any such permit, subject in each case to such qualification as may be set
forth or incorporated by reference in the Prospectus; and (iii) except as
described or incorporated by reference in the Prospectus, such permits
contain no restrictions that are burdensome to the Company or any of its
subsidiaries.
(u) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(v) Except rights as to which waivers have been obtained in writing
with respect to inclusion in this offering, no holder of any security of
the Company other than the Selling Stockholders [AND _____] has any right
to require registration of shares of Common Stock or any other security of
the Company.
(w) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida).
(x) There are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens related to or
entitling any person to purchase or otherwise to acquire any shares of the
capital stock of, or other ownership interest in, the Company or any
subsidiary thereof except as otherwise disclosed or incorporated by
reference in the Registration Statement or which have been granted pursuant
to the Company's stock option plans in amounts which are immaterial or are
required by law.
18
(y) Except as would not, singly or in the aggregate, have a Material
Adverse Effect, neither the Company nor any of its subsidiaries has (A)
violated any applicable federal, state, provincial or foreign law relating
to employment or employment practices or the terms and conditions of
employment, including, without limitation, discrimination in the hiring,
promotion or pay of employees, wages, hours of work, plant closings and
layoffs, collective bargaining, and occupational safety and health, or any
provisions of the Employee Retirement Income Security Act of 1974 ("ERISA")
or the rules and regulations promulgated thereunder or any other applicable
law (whether foreign or domestic) relating to or governing the operation or
maintenance of any plan or arrangement falling within the definition of an
"employee benefit plan" (as such term is defined in Section 3(3) of ERISA)
or any other employee benefit plan or arrangement, or (B) engaged in any
unfair labor practice. Except as would not, singly or in the aggregate,
result in any Material Adverse Effect, there is (i) no unfair labor
practice charge or complaint pending or threatened against the Company or
any of its subsidiaries before the National Labor Relations Board or any
corresponding state, local, provincial or foreign agency, and no grievance
or arbitration proceeding arising out of or under any collective bargaining
agreement is so pending or threatened against the Company or any of its
subsidiaries; and (ii) no union representation claim or question existing
with respect to the employees of the Company or any of its subsidiaries and
no union organizing activities taking place. Except as would not, singly
or in the aggregate, result in any Material Adverse Effect, (i) no labor
dispute involving the employees of the Company or any of its subsidiaries
exists or, to the knowledge of the Company, is threatened or imminent; and
(ii) the Company is not aware of any existing, threatened or imminent
labor disturbance by the employees of any principal suppliers,
manufacturers or contractors of the Company or any of its subsidiaries.
(z) The books, records and accounts of the Company and its
subsidiaries accurately and fairly reflect, in reasonable detail, the
transactions in and dispositions of the assets of the Company and its
subsidiaries. The Company and each of its subsidiaries maintains a system
of internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
19
access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(aa) All material tax returns required to be filed by the Company and
each of its subsidiaries in any jurisdiction have been filed, other than
those filings being contested in good faith, and all material taxes,
including withholding taxes, penalties and interest, assessments, fees and
other charges due pursuant to such returns or pursuant to any assessment
received by the Company or any of its subsidiaries have been paid, other
than those being contested in good faith and for which adequate reserves
have been provided. No deficiency or adjustment for any material taxes has
been proposed or assessed against the Company or any of its subsidiaries.
(bb) The Company and its subsidiaries own, license or possess the
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names presently employed by them in
connection with the businesses now operated by them, except such as to
which the failure so to own, license or possess would not, singly or in the
aggregate, have a Material Adverse Effect, and neither the Company nor any
of its subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any of the foregoing, which,
singly or in the aggregate, if the subject of any unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(cc) This Agreement has been duly authorized, executed and delivered
by the Company and constitutes the legal, valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms
(except as rights to indemnity and contribution hereunder may be limited by
applicable law).
(dd) The Company has full power, authority and legal capacity to enter
into and perform its obligations under this Agreement; and the Company has
taken all necessary corporate action to authorize the execution and the
performance of its obligations under this Agreement.
20
(ee) No bid or purchase by the Company, and no bid or purchase that
could be attributed to the Company (as a result of bids or purchases by an
"affiliated purchaser" within the meaning of Rule 10b-6 under the Exchange
Act) for or of the Common Stock, any securities of the same class or series
as the Common Stock or any securities immediately convertible into or
exchangeable for or that represent any right to acquire Common Stock, is
now pending or in progress or will have commenced at any time prior to the
completion of the distribution of the Shares.
(ff) Each of the Company and its subsidiaries is in compliance with
all laws, ordinances and regulations (domestic and foreign) applicable to
its properties (whether owned or leased) and its business, as described in
the Prospectus, except where noncompliance with such laws, ordinances and
regulations would not, singly or in the aggregate, have a Material Adverse
Effect.
7. Representations and Warranties of the Selling Stockholders. The
----------------------------------------------------------
Selling Stockholders, each severally and not jointly, for themselves
respectively and not the others, represent and warrant to the Underwriters and
the Company that:
(a) The execution, delivery and performance of this Agreement by such
Selling Stockholder, the sale of such Selling Stockholder's Additional
Shares and the consummation of the transactions contemplated by this
Agreement will not (i) conflict with or result in a breach of any of the
terms or provisions, or constitute a default or cause an acceleration of
any obligation under, (A) the respective charter, bylaws or other
organizational documents of such Selling Stockholder or (B) any bond, note,
debenture or other evidence of indebtedness or any indenture, mortgage,
deed of trust or other material contract, lease, or other instrument to
which such Selling Stockholder is a party or by which any such Selling
Stockholder is bound, or to which any of the property or assets of such
Selling Stockholder is subject, or (C) any order of any court or
governmental agency or authority entered in any proceeding to which such
Selling Stockholder was or is a party or by which such Selling Stockholder
is bound or (ii) violate or conflict with any applicable U.S. Federal,
state, province or local law, rule, administrative regulation or ordinance
or administrative or court decree applicable to such Selling Stockholder or
its property, except in each such case as would not, singly or in the
aggre-
21
gate, have a material adverse effect on the business or results of
operations, where applicable, or financial condition of such Selling
Stockholder and their subsidiaries, where applicable, taken as a whole.
(b) Such Selling Stockholder has on the date of this Agreement and
will have at the Option Closing Date, good and marketable title to such
Selling Stockholder's Additional Shares, free and clear of any liens,
claims, encumbrances and restrictions on transfer other than pursuant to
this Agreement.
(c) All authorizations, approvals and consents necessary for the
execution, delivery and performance by such Selling Stockholder of this
Agreement, and the sale and delivery by such Selling Stockholder to the
Underwriters of such Selling Stockholder's Additional Shares (other than
such authorizations, approvals or consents as may be necessary under state
securities or Blue Sky laws) have been obtained and are in full force and
effect; each such Selling Stockholder has all requisite right, power and
authority to enter into and perform its obligations under this Agreement
and to sell, transfer and deliver such Selling Stockholder's Additional
Shares; and this Agreement has been duly authorized, where applicable,
executed and delivered by such Selling Stockholder and is a valid and
binding agreement of such Selling Stockholder enforceable in accordance
with its terms (except as the enforceability thereof may be limited by
public policy, bankruptcy, insolvency, fraudulent conveyance or transfer,
reorganization, moratorium, or similar laws affecting creditors' rights
generally, the availability of equitable remedies may be limited by
equitable principles of general applicability and rights to indemnity and
contribution hereunder may be limited by applicable law).
(d) The Selling Stockholder Information, as to such Selling
Stockholder, does not, and will not on the Closing Date, include an 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.
(e) Such Selling Stockholders has not taken, and will not take,
directly or indirectly, any action designed to, or which might reasonably
be expected to, cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of
the Shares pursuant to the distribution contemplated by this Agreement,
and,
22
other than as permitted by the Act, such Selling Stockholder has not
distributed and will not distribute any prospectus or other offering
material in connection with the offering and sale of the Shares.
(f) At any time during the period described in Section 5(e) hereof, if
there is any change in the Selling Stockholder Information, as to such
Selling Stockholder, such Selling Stockholder will promptly notify the
Underwriters and the Company of such change.
(g) Such Selling Stockholders acknowledges for all purposes under this
Agreement (including this paragraph and Section 8 hereof) that the
Underwriter Information constitutes the only written information furnished
to the Company by or on behalf of the Underwriters for use in the
Registration Statement or the Prospectus (or any amendment or supplement to
them) and that the Underwriters shall not be deemed to have provided any
information (and therefore are not responsible for any statement or
omission) pertaining to any arrangement or agreement with respect to any
party other than the Underwriters.
8. Indemnification.
---------------
(a) The Company agrees to indemnify and hold harmless (i) each of the
Underwriters and (ii) each person, if any, who controls (within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act) any of the
Underwriters (any of the persons referred to in this clause (ii) being
hereinafter referred to as a "controlling person"), and (iii) the
respective officers, directors, partners, employees, representatives and
agents of any of the Underwriters or any controlling person (any person
referred to in clause (i), (ii) or (iii) may hereinafter be referred to as
an "Indemnified Person") to the fullest extent lawful, from and against any
and all losses, claims, damages, liabilities, judgments, actions and
expenses (including without limitation and as incurred, reimbursement of
all reasonable costs of investigating, preparing, pursuing or defending any
claim or action, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, including the reasonable fees and
expenses of counsel to any Indemnified Person) directly or indirectly
caused by, related to, based upon, arising out of or in connection with any
untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement (or any amendment thereto), including the
information deemed to be a part of the Registration Statement pursuant to
Rule
23
430A promulgated under the Act, if applicable, or the Prospectus (including
any amendment or supplement thereto) or any preliminary prospectus, or any
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein (in the case
of the Prospectus, in light of the circumstances under which they were
made) not misleading, except insofar as such losses, claims, damages,
liabilities or expenses are caused by an untrue statement or omission or
alleged untrue statement or omission that is (i) made in reliance upon and
in conformity with information relating to any Underwriter Information or
(ii) with respect to the Underwriter from whom the person asserting the
loss, claim, damage or liability purchased Shares, made in any preliminary
prospectus if a copy of the Prospectus (as amended or supplemented) shall
have been furnished to the Underwriters by the Company with such
amendments or supplements thereto on a timely basis and such Prospectus was
not delivered by or on behalf of any of the Underwriters to the person
asserting the claim or action, if required by law to have been so delivered
by the Underwriter seeking indemnification, at or prior to the written
confirmation of the sale of the Shares, and it shall be finally determined
by a court of competent jurisdiction, by a judgment not subject to appeal
or review, that the Prospectus (as so amended or supplemented) would have
corrected such untrue statement or omission. The Company shall notify you
promptly of the institution, threat or assertion of any claim, proceeding
(including any governmental investigation) or litigation in connection with
the matters addressed by this Agreement which involves the Company or an
Indemnified Person.
Each of the Selling Stockholders agrees, if any Selling Stockholders
Additional Shares are offered or sold, severally and not jointly to
indemnify and hold harmless each Indemnified Person to the same extent as
the foregoing indemnity from the Company (but only with respect to claims
and actions based on untrue statements or omissions contained in the
Selling Stockholders Information as set forth in the Registration Statement
or the Prospectus).
Notwithstanding anything contained in this Section 8, the aggregate
liability of each of the Selling Stockholders pursuant to the provisions of
this Section 8 shall be limited to an amount equal to the aggregate
proceeds received by each Selling Stockholder from the sale of the Shares
pursuant to this Agreement.
24
The several Underwriters acknowledge for all purposes under this
Agreement (including this paragraph and Section 8 hereof) that the Selling
Stockholders Information constitutes the only written information delivered
to the Company by or on behalf of the Selling Stockholders for use in the
Registration Statement or the Prospectus (or any amendment or supplement to
them) and that the Selling Stockholders shall not be deemed to have
provided any information (and therefore are not responsible for any
statement or omission) pertaining to any arrangement or agreement with
respect to any party other than the Selling Stockholders.
(b) In case any action or proceeding (including any governmental
investigation) shall be brought or asserted against any Indemnified Person
with respect to which indemnity may be sought against an indemnifying party
(or indemnifying parties), such Indemnified Person shall promptly notify
the indemnifying party (or indemnifying parties) in writing (provided that
--------
the failure to give such notice shall not relieve the indemnifying party
(or indemnifying parties) of its obligations pursuant to this Agreement
unless and only to the extent such failure to give notice results in the
loss or compromise of any material rights or defenses of the indemnifying
party (or indemnifying parties) as determined by a court of competent
jurisdiction by a final judgment no longer subject to appeal or review).
Upon receiving such notice, the indemnifying party (or indemnifying
parties) shall be entitled to participate in any such action or proceeding
and to assume, at their sole expense, the defense thereof, with counsel
satisfactory to such Indemnified Person (who shall not, except with the
consent of the Indemnified Person, be counsel to the indemnifying party (or
indemnifying parties) or an affiliate thereof) and, after written notice
from the indemnifying party (or indemnifying parties) to such Indemnified
Person of their election so to assume the defense thereof within 5 business
days after receipt of the notice from the Indemnified Person of such action
or proceeding, the indemnifying party (or indemnifying parties) shall not
be liable to such Indemnified Person hereunder for legal expenses of other
counsel subsequently incurred by such Indemnified Person in connection with
the defense thereof, other than reasonable costs of investigation, unless
(i) the indemnifying party (or indemnifying parties) agrees in writing to
pay such fees and expenses, or (ii) the indemnifying party (or indemnifying
parties) fails to assume such defense within the 5 business days specified
above or fails to employ counsel satisfactory to such Indemnified Person,
or (iii) the named parties to any such action or proceeding (including any
impleaded parties) include both such Indemnified Person
25
and the indemnifying party (or indemnifying parties) or its affiliates, and
such Indemnified Person shall have been advised by counsel either (x) that
there may be one or more legal defenses available to such Indemnified
Person that are different from or additional to those available to the
indemnifying party (or indemnifying parties), or (y) a conflict of interest
exists between such Indemnified Person and the indemnifying party (or
indemnifying parties) or its affiliates (in which case, if such Indemnified
Person notifies the indemnifying party (or indemnifying parties) in
writing, neither the indemnifying party (or indemnifying parties) shall
have the right to assume the defense thereof), it being understood,
however, that the indemnifying party (or indemnifying parties) shall not,
in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances,
be liable for the reasonable fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) at any time for such
Indemnified Persons, which firm shall be designated in writing by DLJ. No
indemnifying party shall be liable for any settlement of any such action or
proceeding effected without its prior written consent. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have
requested the indemnifying party (or indemnifying parties) to reimburse the
Indemnified Person for fees and expenses of counsel as contemplated by the
second sentence of this paragraph, the indemnifying party (or indemnifying
parties) agree that they shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 45 business days after receipt by the indemnifying
party (or indemnifying parties) of the aforesaid request and (ii) the
indemnifying party (or indemnifying parties) shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of
such settlement. Neither the indemnifying party (or indemnifying parties)
shall, without the prior written consent of each Indemnified Person, settle
or compromise or consent to the entry of judgment in or otherwise seek to
terminate any pending or threatened action, claim, litigation or proceeding
in respect of which indemnification or contribution may be sought hereunder
(whether or not any Indemnified Person is a party thereto), unless such
settlement, compromise, consent or termination includes an unconditional
release of each Indemnified Person from all liability arising out of such
action, claim, litigation or proceeding.
26
(c) Each of the Underwriters agrees, severally and not jointly, to
indemnify and hold harmless the Company and each of the Selling
Stockholders, their respective directors, where applicable, the officers of
the Company who sign the Registration Statement, any person controlling
(within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act) any of the Company or the Selling Stockholders, and, where applicable,
the officers, directors, partners, employees, representatives and agents of
each such person, to the same extent as the foregoing indemnity from the
Company and the Selling Stockholders to each of the Indemnified Persons,
but only with respect to claims and actions based on any Underwriter
Information.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or expenses referred to herein, then each of the
Company, the Selling Stockholders and the Underwriters, as applicable, in
lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages, liabilities and expenses (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company and
each of the Selling Stockholders on the one hand and the Indemnified
Persons on the other hand from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
indemnifying parties and the indemnified party, as well as any other
relevant equitable considerations. The relative benefits received by the
Company and each of the Selling Stockholders, on the one hand, and any of
the Underwriters, on the other hand, shall be deemed to be in the same
proportion as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the
Company and each of the Selling Stockholders bear to the total underwriting
discounts and commissions received by such Underwriter, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault
of the Company and each of the Selling Stockholders, on the one hand, and
the Underwriters, on the other hand, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
related to information supplied by the Company or any of the Selling
Stockholders, on the one hand, or the Underwriters, on the other
27
hand, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
indemnity and contribution obligations of the Company and each of the
Selling Stockholders set forth herein shall be in addition to any liability
or obligation that the Company or any of the Selling Stockholders may
otherwise have (other than with respect to the matters covered by this
Section 8) to any Indemnified Person.
The Company, each of the Selling Stockholders and the Underwriters
agree that it would not be just and equitable if contribution pursuant to
this Section 8(d) were determined by pro rata allocation (even if the
--- ----
Underwriters were treated as one entity for such purpose) or by any other
method of allocation 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, liabilities or expenses 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 Xxxxxxx 0, xxxx of
the Underwriters (and its related Indemnified Persons) shall be required to
contribute, in the aggregate, any amount in excess of the amount by which
the total underwriting discount applicable to the Shares purchased by such
Underwriter exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 8(d) are several in proportion to the respective
number of Shares purchased by each of the Underwriters hereunder and not
joint.
(e) The rights and obligations provided in this Section 8 shall
terminate seven years from the date hereof.
9. Conditions of Underwriters' Obligations. The several obligations
---------------------------------------
of the Underwriters to purchase the Firm Shares under this Agreement are subject
to the satisfaction of each of the following conditions:
28
(a) All the representations and warranties of the Company and the
Selling Stockholders contained in this Agreement shall be true and correct
on the Closing Date with the same force and effect as if made on and as of
the Closing Date.
(b) The Registration Statement shall have become effective not later
than 10:00 A.M., New York City time, on the date of this Agreement or at
such later date and time as you may approve in writing, and at the Closing
Date no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been commenced or shall be pending before or contemplated by the
Commission.
(c) No action shall have been taken and no statute, rule or regulation
or order shall have been enacted, adopted or issued by any governmental
agency which would, as of the Closing Date, prevent the sale of the Shares;
no injunction, restraining order or order of any nature by a U.S. federal
or state court of competent jurisdiction shall have been issued as of the
Closing Date which would prevent the sale of the Shares; except as
disclosed in the Prospectus, on the Closing Date, no action, suit or
proceeding shall be pending against, or, to the knowledge of the Company
or any of the Selling Stockholders, threatened against, the Company or any
of its subsidiaries or any of the Selling Stockholders, respectively,
before any court or arbitrator or any governmental body, agency or official
which, if adversely determined, would interfere with or adversely affect
the sale of the Shares or could reasonably be expected to have a Material
Adverse Effect, or in any manner invalidate this Agreement or the sale of
the Shares.
(d) (i) Since the date of the latest balance sheet included in or
incorporated by reference into the Registration Statement and the
Prospectus, there shall not have been any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, cash flows, business
affairs or business prospects, whether or not arising in the ordinary
course of business, of the Company and its subsidiaries, taken as a whole,
(ii) except as set forth in the Registration Statement, since the date of
the latest balance sheet included in or incorporated by reference into the
Registration Statement and the Prospectus, there shall not have been any
material adverse change, or any development involving a prospective
29
material adverse change, in the capital stock or in the long-term debt, or
material increase in short-term debt, of the Company and its subsidiaries,
taken as a whole, (iii) the Company and its subsidiaries shall have no
liability or obligation, direct or contingent, which is material to the
Company and its subsidiaries, taken as a whole, other than those reflected
or incorporated by reference in the Registration Statement and the
Prospectus and (iv) on the Closing Date you shall have received a
certificate dated the Closing Date, signed by Xxxxxxx X. Xxxxxxxx and Xxxxx
X. Xxxxxx, in their capacities as the Chief Executive Officer and the Chief
Financial Officer of the Company, respectively, confirming the matters
expressly relating to the Company set forth in paragraphs (a), (b), (c)
(with respect to the first two clauses of such paragraph (c), to the
Company's best knowledge) and (d) of this Section 9.
(e) The Underwriters shall have received a certificate of each of the
Selling Stockholders, dated the Closing Date, executed by a Senior
Executive Officer and its principal financial or accounting officer, in
their capacities as officers of each such Selling Stockholder, confirming
the matters relating to each of the Selling Stockholders set forth in
paragraph (a) and the last clause of paragraph (c) of this Section 9 with
respect to the sale of the Selling Stockholders Additional Shares and, to
their knowledge, with respect to the first two clauses of paragraph (c) of
this Section 9 with respect to the sale of the Selling Stockholders
Additional Shares.
(f) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing
Date, of Xxxxxxxxxxx & Xxxxxxxx LLP, counsel for the Company, to the effect
that:
(i) the Company and each of its United States subsidiaries listed
on Schedule V hereto (the "Subsidiaries") has been duly incorporated,
is existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and
corporate authority required to carry on its business as described in
the Prospectus and to own, lease and operate its properties;
(ii) all of the issued and outstanding shares of capital stock
of each of the Subsidiaries have been duly and validly authorized and
issued and are fully paid and nonassessable;
30
(iii) (a) the Shares have been duly authorized for issuance
and sale to the Underwriters pursuant to this Agreement and, when
issued and delivered by the Company pursuant to this Agreement against
payment of the consideration set forth herein, will be validly
issued, fully paid and nonassessable, (b) the issuance and sale of the
Shares by the Company will not be subject to preemptive or other
similar rights and (c) the Shares to be sold by the Selling
Stockholders hereunder have been duly authorized and validly issued
and are fully paid and nonassessable, and, to such counsel's
knowledge, except as otherwise set forth in the Prospectus, the sale
of such Shares is not subject to any preemptive or similar rights;
(iv) the authorized capital stock of the Company, including the
Common Stock, conforms as to legal matters to the description thereof
contained or incorporated by reference in the Prospectus, and, except
for the pledge to the Banks of capital stock of those certain
Subsidiaries pursuant to, and as set forth in, the Credit Facilities,
are, to our knowledge, owned by the Company free and clear of any
security interest, claim, lien, encumbrance or adverse interest of any
nature;
(v) the Registration Statement has become effective under the
Act, and, to such counsel's knowledge, no stop order suspending its
effectiveness has been issued and no proceedings for that purpose are
pending before or threatened by the Commission;
(vi) the statements under the captions "Shares Eligible for
Future Sale," "Recent and Pending Acquisitions," "Dividend Policy" and
"Description of Capital Stock" in the Prospectus and Item 15 of Part
II of the Registration Statement, insofar as such statements
constitute a summary of legal matters or certain contents of documents
referred to therein, are fair summaries of such legal matters or
contents of documents; or
(vii) the execution, delivery and performance of this Agreement
by the Company, compliance by the Company with all the provisions
hereof and the consummation of the transactions contemplated hereby
will not require any consent, approval, authorization or other order
of any court, regulatory body, administra-
31
tive agency or other governmental body (except as such may be required
under the Act or other securities or Blue Sky laws) and, except as
would not have a Material Adverse Effect, will not violate or
constitute a breach of any of the terms or provisions of, or a default
(with the passage of time, the giving of notice or otherwise) under,
the charter or by-laws or other equivalent instruments, as the case
may be, of the Company or any of the Subsidiaries or any agreement,
lease, contract, indenture or other instrument that is an exhibit to
the Registration Statement or any document incorporated by reference
therein, or (assuming compliance with all applicable state securities
or Blue Sky laws) violate any laws or administrative regulations
applicable to the Company or any of its Subsidiaries or their
respective properties which, in such counsel's opinion, are normally
applicable to the transactions of the type contemplated by this
Agreement or violate any judgment, injunction, order or decree known
to such counsel that names the Company or any of the Subsidiaries and
is specifically directed to any of them or any of their respective
properties;
(viii) such counsel does not know of any contract or other
document to which the Company or any Subsidiary is a party which is
required to be described in the Registration Statement or the
Prospectus or is required to be filed as an exhibit to the
Registration Statement which is not described or filed as required;
(ix) the Company has the corporate power and authority to enter
into and perform this Agreement; and this Agreement has been duly
authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company enforceable in accordance with its
terms (except as rights to indemnity and contribution hereunder may be
limited by applicable law);
(x) to the best of such counsel's knowledge, except for rights as
to which waivers have been obtained in writing with respect to
inclusion in this Offering, no holder of any security of the Company
other than the Selling Stockholders [AND _______] has any right to
require registration of shares of Common Stock or any other security
of the Company other than [ ];
32
(xi) the Registration Statement and the Prospectus and any
supplement or amendment thereto (except for financial statements and
financial schedules and other statistical data included or
incorporated therein as to which no opinion need be expressed) comply
as to form in all material respects with the Act; and
(xii) the Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company and the Selling Stockholders, representatives of the independent public
accountants of each of the Company[, WATERPRO SUPPLIES CORPORATION, WHEELABRATOR
TECHNOLOGIES INC.--SYSTEMS AND MANUFACTURING GROUP, UNITED UTILITIES PLC--
PROCESS DIVISION AND THE UTILITY SUPPLY GROUP, INC.,] and representatives of the
Underwriters and their counsel at which the contents of the Registration
Statement and the Prospectus were discussed and, although such counsel has not
independently verified and is not passing upon and does not assume
responsibility for the accuracy, completeness or fairness of the statements
contained in the aforesaid Registration Statement or the Prospectus (except as
specified elsewhere in such counsel's opinion), on the basis of the foregoing
(relying as to materiality to a large extent upon the statements of officers and
other representatives of the Company), nothing has come to the attention of such
counsel that causes such counsel to believe that the Registration Statement, at
the time such Registration Statement or any post-effective amendment became
effective, contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, as amended or
supplemented, as of its date and the Closing Date, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being understood
that such counsel need express no opinion with respect to the financial
statements, schedules, statistical data, and pro forma and other financial data
included or incorporated by reference in the Registration Statement or the
Prospectus).
The opinion of Xxxxxxxxxxx & Xxxxxxxx LLP described in paragraph (f)
above shall be rendered to you at the request of the Company and shall so state
therein. In rendering such opinions, such counsel may rely upon certificates
33
of any officer of the Company or of government officials as to matters of fact
of which the maker of such certificate has knowledge provided that counsel
rendering such opinion shall furnish the Underwriters with copies of any such
statements or certificates. In addition, in rendering their opinion, such
counsel may state that their opinion is limited to matters of the laws of the
Commonwealth of Pennsylvania, the General Corporation Law of the State of
Delaware and U.S. Federal law.
(g) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing
Date, of Xxxxxx X. Xxxxxxxx, General Counsel for the Company, to the effect
that:
(i) to the knowledge of such counsel, each contract or
document described in or whose description is incorporated into the
Prospectus is, unless otherwise disclosed therein, in full force and
effect in accordance with its terms, except as would not cause a
Material Adverse Effect;
(ii) neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws or other equivalent
instruments, as the case may be, except as would not singly or in the
aggregate have a Material Adverse Effect, and, to such counsel's
knowledge, except as would not have a Material Adverse Effect, neither
the Company nor any of its subsidiaries is in default in the
performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or in any
other agreement, lease, contract, indenture or instrument to which the
Company or any of its subsidiaries is a party or by which it or any of
its subsidiaries or their respective property is bound, and there
exists no condition which, with the passage of time or otherwise,
would constitute such a default under any such document or instrument;
(iii) the execution, delivery and performance of this Agreement
by the Company, compliance by the Company with all the provisions
hereof and the consummation of the transactions contemplated hereby
will not require any consent, approval, authorization or other order
of any court, regulatory body, administrative agency or other
governmental body (except as such may be re-
34
quired under the Act or other securities or Blue Sky laws) and will
not conflict with or constitute a breach of any of the terms or
provisions of, or a default (with the passage of time or otherwise)
under, the charter or by-laws or other equivalent instruments, as the
case may be, of the Company or any of its subsidiaries or, except as
such would not have a Material Adverse Effect, any agreement, lease,
contract, indenture or other instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective properties are bound, or, except such
as would not have a Material Adverse Effect, violate or conflict with
any valid statutes or valid and published administrative regulations
applicable to the Company or any of its subsidiaries or their
respective properties which, in such counsel's opinion, are normally
applicable to the transactions of the type contemplated by this
Agreement or violate any judgment, injunction, order or decree known
to such counsel that names the Company or any of the Subsidiaries and
is specifically directed to any of them or any of their respective
properties;
(iv) 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 their respective property
is subject which is required to be described in the Registration
Statement or the Prospectus and is not so described or incorporated by
reference;
(v) the Company has the corporate power and authority to enter
into and perform this Agreement; this Agreement has been duly
authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company enforceable in accordance with its
terms (except as rights to indemnity and contribution hereunder may be
limited by applicable law).
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company and the Selling Stockholder, representatives of the independent public
accountants of each of the Company[, WATERPRO SUPPLIES CORPORATION, WHEELABRATOR
TECHNOLOGIES INC.--SYSTEMS AND MANUFACTURING GROUP, UNITED UTILITIES PLC--
PROCESS DIVISION AND THE UTILITY SUPPLY GROUP, INC.,] and representatives of the
Underwriters and their counsel at which the contents of the Registration
35
Statement and the Prospectus were discussed and, although such counsel has not
independently verified and is not passing upon and does not assume
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus (except as specified
elsewhere in such counsel's opinion), on the basis of the foregoing, nothing has
come to the attention of such counsel that causes such counsel to believe that
the Registration Statement, at the time such Registration Statement or any post-
effective amendment became effective, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus, as amended or supplemented, as of its date and the Closing Date,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading (it
being understood that such counsel need express no opinion with respect to the
financial statements, schedules, statistical data, and pro forma and other
financial data included in the Registration Statement or the Prospectus).
The opinion of Xxxxxx X. Xxxxxxxx described in paragraph (g) above
shall be rendered to you at the request of the Company and shall so state
therein.
(h) You will receive on the Closing Date an opinion (satisfactory to
you and counsel for the Underwriters), dated the Closing Date, of each of
[_____________], counsel to Xxxx Xxxxxxx Capital Growth Fund IIB Limited
Partnership and Xxxx Xxxxxxx Capital Growth Fund III Limited Partnership,
[ ], counsel to Xxxx X. Xxxxxxxxx, as Trustee of the 1990
Family Trust, [ ], counsel to the Black Xxxxxxx Company, and
[ ], counsel to CGW Southeast Partners I, L.P., to the effect
that:
(i) such Selling Stockholder has the requisite power and
authority to enter into and perform this Agreement; this Agreement has
been duly and validly authorized by all necessary action by such
Selling Stockholder, where applicable, and has been duly executed and
delivered by such Selling Stockholder; and the transactions
contemplated by this Agreement have been duly and validly authorized
by all necessary action by such Selling Stockholder, where applicable;
36
(ii) such Selling Stockholder has full legal right, power and
authority, and any approval required by law (other than any approval
imposed by the applicable state securities and Blue Sky laws), to
sell, assign, transfer and deliver such Selling Stockholder's
Additional Shares to be sold by it in the manner provided in this
Agreement;
(iii) immediately prior to the Closing Date, such Selling
Stockholder was the sole registered owner of such Selling
Stockholder's Additional Shares as disclosed in the Prospectus as
being sold by it; upon purchase of such Selling Stockholder's
Additional Shares in accordance with the terms of this Agreement,
assuming the Underwriters purchased such Selling Stockholder's
Additional Shares in good faith and without notice of any adverse
claim within the meaning of Section 8-302 of the New York Uniform
Commercial Code, the Underwriters will have acquired all rights of
such Selling Stockholder in such Selling Stockholder's Additional
Shares free of any adverse claim, any lien in favor of the Company,
and any restrictions on transfer imposed by the Company; and
(iv) neither the sale of such Selling Stockholder's Additional
Shares nor the performance of such Selling Stockholder's obligations
pursuant to this Agreement will (A) conflict with, result in a breach
or violation of, or constitute a default under the terms of any
indenture or other agreement or instrument of which such counsel has
knowledge to which such Selling Stockholder is a party or bound, or
any statute, rule or regulation to which such Selling Stockholder is
subject, or to which any of the properties of such Selling Stockholder
is subject, or any order of which such counsel has knowledge of any
court or governmental agency or body having jurisdiction over such
Selling Stockholder or any of its properties or (B) violate any of
the provisions of the charter, bylaws or other organizational
documents of such Selling Stockholder as in effect on the date of the
opinion, except that such counsel need express no opinion as to the
state securities or Blue Sky laws or as to compliance with the
antifraud provisions of Federal or state securities laws.
(i) You shall have received on the Closing Date an opinion, dated the
Closing Date, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
37
("Xxxxxxx Xxxx"), counsel for the Underwriters, in form and substance
reasonably satisfactory to you.
(j) You and the Selling Stockholders shall have received letters on
and as of the date hereof as well as on and as of the Closing Date (in the
latter case constituting an affirmation of the statements set forth in the
former, based on limited procedures), in form and substance satisfactory to
you, from KPMG Peat Marwick LLP, Price Waterhouse LLP, Ernst & Young LLP,
Xxxxxx Xxxxxxxx LLP [AND DELOITTE?] (the "Accountants"), each independent
public accountants, with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus.
(k) Xxxxxxx Xxxx shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them to
review or pass upon the matters referred to in this Section 9 and in order
to evidence the accuracy, completeness or satisfaction in all material
respects of any of the representations, warranties or conditions herein
contained.
(l) Prior to the Closing Date, the Company and the Selling
Stockholders shall have furnished to you or caused to be furnished to you
such further information, certificates, opinions and documents as you may
reasonably request.
(m) The Company and the Selling Stockholders shall not have failed at
or prior to the Closing Date to perform or comply with any of the
agreements herein contained and required to be performed or complied with
by the Company or the Selling Stockholders, as applicable, at or prior to
the Closing Date.
The several obligations of the Underwriters to purchase any Additional
Shares hereunder are subject to satisfaction on and as of each Option Closing
Date of the conditions set forth in paragraphs (a) through (m), except that the
opinions called for in paragraphs (f), (g) and (h) and the letters referred to
in paragraph (j) shall be revised to reflect the sale of the Additional Shares.
10. Effective Date of Agreement and Termination. This Agreement
-------------------------------------------
shall become effective upon the execution of this Agreement.
38
This Agreement may be terminated at any time prior to the Closing Date
by you by written notice to the Company if any of the following has occurred:
(i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any adverse change or development
involving a prospective adverse change in the condition, financial or otherwise,
of the Company or any of its subsidiaries or the earnings, cash flows, business
affairs, or business prospects of the Company or any of its subsidiaries,
whether or not arising in the ordinary course of business, which would, in your
judgment, make it impracticable or inadvisable to market the Shares or to
enforce contracts for the sale of the Shares, (ii) any outbreak or escalation of
hostilities or other national or international calamity or crisis or change in
economic conditions or in the financial markets of the United States or
elsewhere that, in your judgment, is material and adverse and would, in your
judgment, make it impracticable or inadvisable to market the Shares or to
enforce contracts for the sale of the Shares, (iii) the suspension or material
limitation of trading in securities on the New York Stock Exchange, the American
Stock Exchange or the NASDAQ National Market System or limitation on prices for
securities on any such exchange or National Market System, (iv) the enactment,
publication, decree or other promulgation of any federal or state statute,
regulation, rule or order of any court or other governmental authority which in
your judgment materially and adversely affects, or will materially and adversely
affect, the business or operations of the Company and its subsidiaries, taken as
a whole, (v) the declaration of a banking moratorium by either federal or New
York State authorities or (vi) the taking of any action by any federal, state or
local government or agency in respect of its monetary or fiscal affairs which in
your judgment has a material adverse effect on the financial markets in the
United States and would, in your judgment, make it impracticable or inadvisable
to market the Shares or to enforce contracts for the sale of the Shares.
If on the Closing Date any one or more of the Underwriters shall fail
or refuse to purchase the Firm Shares which it or they have agreed to purchase
hereunder on such date and the aggregate number of Firm Shares which such
defaulting Underwriter or Underwriters, as the case may be, agreed but failed or
refused to purchase is not more than one-tenth of the total number of Shares to
be purchased on such date by all Underwriters, each non-defaulting Underwriter
shall be obligated severally, in the proportion which the number of Firm Shares
set forth opposite its name in Schedule II and Schedule III bears to the total
number of Firm Shares which all the non-defaulting Underwriters, as the case may
be, have agreed to purchase, or in such other proportion as you may specify, to
purchase the Firm Shares which such defaulting Underwriter or
39
Underwriters, as the case may be, agreed but failed or refused to purchase on
such date; provided that in no event shall the number of Firm Shares which any
--------
Underwriter has agreed to purchase pursuant to Section 3 hereof be increased
pursuant to this Section 10 by an amount in excess of one-ninth of such number
of Firm Shares without the written consent of such Underwriter. If on the
Closing Date any Underwriter or Underwriters shall fail or refuse to purchase
Firm Shares and the aggregate number of Firm Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Shares to be
purchased on such date by all Underwriters, and arrangements satisfactory to you
and the Company for purchase of such Shares are not made within 48 hours after
such default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Company and the Selling Stockholders. In any
such case which does not result in termination of this Agreement, either you or
the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or 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 any such
Underwriter under this Agreement.
11. Further Agreements of the Selling Stockholders. Each of the
----------------------------------------------
Selling Stockholders agrees with the Underwriters and the Company:
(a) Such Selling Stockholder has, and on the Closing Date will have,
full legal right, power and authority to enter into this Agreement and the
Custody Agreement between each of the Selling Stockholders and [ ],
as Custodian (the "Custody Agreement"), and to sell, assign, transfer
and deliver such Selling Stockholder's Shares in the manner provided herein
and therein, and this Agreement and the Custody Agreement have been duly
authorized, executed and delivered by such Selling Stockholder and each of
this Agreement and the Custody Agreement is a valid and binding agreement
of such Selling Stockholder enforceable in accordance with its terms,
except as rights to indemnity and contribution hereunder may be limited by
applicable law.
(b) The power of attorney signed by such Selling Stockholder
appointing [ ] and [ ], or any one of them, as its
attorney-in-fact to the extent set forth therein with regard to the
transactions contemplated hereby and by the Registration Statement and the
Custody Agreement has been duly authorized, executed and delivered by
40
or on behalf of such Selling Stockholder and is a valid and binding
instrument of such Selling Stockholder enforceable in accordance with its
terms, and, pursuant to such power of attorney, such Selling Stockholder
has authorized [ ] and [ ], or any one of them, to
execute and deliver on his behalf this Agreement and any other document
necessary or desirable in connection with transactions contemplated hereby
and to deliver such Selling Stockholder's Additional Shares to be sold by
such Selling Stockholder pursuant to this Agreement.
(c) To pay or cause to be paid its own underwriting discounts and
commissions, and all of its costs, fees and expenses incident to the
performance of this Agreement, including any taxes, other than any fees and
expenses borne by the Company pursuant to the Transfer and Registration
Agreement dated as of May 31, 1996 between the Company and the Selling
Stockholders and [UNITED UTILITIES REGISTRATION RIGHTS AGREEMENT?], as
applicable.
(d) To take all reasonable actions in cooperation with the Company and
the Underwriters to do and perform all things to be done by it pursuant to
this Agreement prior to the Closing Date and any Option Closing Date or
reasonably requested by the Company in connection herewith and to satisfy
all conditions precedent to the delivery of the Shares to be sold by it
pursuant to this Agreement.
(e) Prior to any public offering of the Shares to be sold by it to the
Underwriters pursuant to this Agreement, it will cooperate with the
Underwriters and counsel for the Underwriters in connection with the
registration or qualification of any such Shares for offer and sale by the
Underwriters and by dealers under the securities or Blue Sky laws of such
jurisdictions as the Underwriters may reasonably request, and will continue
such qualification in effect so long as reasonably required for
distribution of any such Shares and to file such consents to service of
process or other documents as may be necessary in order to effect such
registration or qualification; provided, however, that it shall not be
-------- -------
required to take any action that would subject it to the general service of
process in any jurisdiction where it is not now so subject.
(f) It agrees to deliver to the Underwriters prior to or at the
Closing Date, if applicable, a properly completed and executed United
41
States Treasury Department Form W-9 (or other form as may be required by
law).
(g) Each of the Selling Stockholders acknowledge for all purposes
under this Agreement (including Section 8 hereof) that the information
appearing under the caption "Selling Stockholders," as to such Selling
Stockholder, has been furnished by such Selling Stockholder in writing
expressly for use in the Registration Statement and the Prospectus (such
information constituting the "Selling Stockholders Information").
12. Miscellaneous. Notices given pursuant to any provision of his
-------------
Agreement shall be addressed as follows: (a) if to the Company, to United States
Filter Corporation, 00-000 Xxxx Xxxxxx, Xxxx Xxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxx X. Xxxxxx, (b) if to the Selling Stockholders, to
[_____________] and (c) if to any Underwriter or to you, to you c/x Xxxxxxxxx,
Xxxxxx & Xxxxxxxx Securities Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Syndicate Department, or in any case to such other address as
the person to be notified may have requested in writing.
The respective indemnities, representations, warranties and other
statements of the Company, the Selling Stockholders, their respective officers
and directors, where applicable, and of the several Underwriters set forth in or
made pursuant to this Agreement and the respective contribution agreements of
the Company and its officers and directors and of the several Underwriters set
forth in this Agreement shall remain operative and in full force and effect, and
will survive delivery of and payment for the Shares for a period of seven years,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter or by or on behalf of the Company or the
Selling Stockholders, the officers or directors of the Company or the Selling
Stockholders, where applicable, or any controlling person of the Company or the
Selling Stockholders, where applicable, (ii) acceptance of the Shares and
payment for them hereunder and (iii) termination of this Agreement.
If this Agreement shall be terminated by the Underwriters because of
any failure or refusal on the part of the Company or the Selling Stockholders to
comply with the terms or to fulfill any of the conditions of this Agreement, the
party whose failure or refusal to comply with such terms or fulfill such
conditions shall reimburse the several Underwriters for all out-of-pocket
expenses (including the fees and disbursements of counsel) reasonably incurred
by them.
42
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the Selling
Stockholders, the Underwriters, any controlling persons referred to herein and
their respective successors and assigns, all as and to the extent provided in
this Agreement, and no other person shall acquire or have any right under or by
virtue of this Agreement. The term "successors and assigns" shall not include a
purchaser of any of the Shares from any of the several Underwriters merely
because of such purchase.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND
PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, EXCLUDING (TO THE GREATEST
EXTENT PERMISSIBLE BY LAW) ANY RULE OF LAW THAT WOULD CAUSE THE APPLICATION OF
THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK. THE COMPANY, ON
BEHALF OF ITSELF AND ITS SUBSIDIARIES, AND EACH OF THE SELLING STOCKHOLDERS EACH
HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING RELATED TO THIS AGREEMENT OR ANY OF THE MATTERS
CONTEMPLATED HEREBY IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF PERSONAL
JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUIT,
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. THE COMPANY
AND EACH OF THE SELLING STOCKHOLDERS EACH IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION THAT IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
43
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
UNITED STATES FILTER CORPORATION
By:___________________________________________
Name:
Title:
XXXX XXXXXXX CAPITAL GROWTH FUND IIB
LIMITED PARTNERSHIP
By:_______________________________________
Name:
Title: Attorney-in-fact
XXXX XXXXXXX CAPITAL GROWTH FUND III
LIMITED PARTNERSHIP
By:_______________________________________
Name:
Title: Attorney-in-fact
XXXX X. XXXXXXXXX, TRUSTEE
By:_______________________________________
Name:
Title: Attorney-in-fact
THE BLACK XXXXXXX COMPANY
By:________________________________________
Name:
Title: Attorney-in-fact
CGW SOUTHEAST PARTNERS I, L.P.
By:________________________________________
Name:
Title: Attorney-in-fact
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
DEUTSCHE XXXXXX XXXXXXXX INC.
NATWEST SECURITIES LIMITED
SALOMON BROTHERS INC
XXXXX XXXXXX INC.
Acting severally on behalf of
itself and the several
U.S. Underwriters named in
Schedule II hereto:
By: XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By:_____________________________
Name:
Title:
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
XXXXXX XXXXXXXX & CO., LIMITED
NATWEST SECURITIES LIMITED
SALOMON BROTHERS INTERNATIONAL LIMITED
XXXXX XXXXXX INC.
Acting severally on behalf of
itself and the several
International Managers named
in Schedule III hereto
By: XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By:_____________________________
Name:
Title:
SCHEDULE I
----------
Number of Selling
Stockholders Additional
Shares available for
Selling Stockholders Purchase
-------------------- ----------------------------
Xxxx Xxxxxxx Capital Growth
Fund IIB Limited Partnership 23,323
Xxxx Xxxxxxx Capital Growth
Fund III Limited Partnership 286,027
Xxxx X. Xxxxxxxxx, Trustee 70,000
The Black Xxxxxxx Company 191,444
CGW Southeast Partners I, L.P. 275,000
----------
845,794
==========
SCHEDULE II
-----------
Number of Firm Shares
U.S. Underwriters to be Purchased
----------------- --------------------------
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities corporation [ ]
Deutsche Xxxxxx Xxxxxxxx Inc. [ ]
NatWest Securities Limited [ ]
Salomon Brothers Inc [ ]
Xxxxx Xxxxxx Inc. [________]
Total 8,000,000
=========
SCHEDULE III
------------
Number of Firm Shares
International Managers to be Purchased
---------------------- ------------------------
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities corporation [ ]
Xxxxxx Xxxxxxxx & Co. Limited [ ]
NatWest Securities Limited [ ]
Salomon Brothers International Limited [ ]
Xxxxx Xxxxxx Inc. [_______]
Total 2,000,000
=========
SCHEDULE IV
-----------
REQUIRED STOCKHOLDER LOCK-UPS
-----------------------------
Name
----
[TO BE UPDATED]
Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxx
Xxxxxxx Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Xxx X. Xxxxx
Xxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxx
G.G. Pique
Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxx
Xxxx X. Xxxxxxxxx
X. Xxxxxx Xxxx
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxx, Xx.
C. Xxxxxx Xxxxxxx, Xx.
Interlake Stockholders /(1)/
[ZIMPRO]
[KBS]
[JET-TECH]
[BEKOX]
[XXXXXX]
[WATER PRO]
[USG]
[UNITED UTILITIES]
_________________
(1) The Interlake Stockholders are Xxxxxxxx X. Xxxxxxxxx and Xxxxx Xxxxxxx
Xxxxxxxxx.
SCHEDULE V
----------
LIST OF CERTAIN SUBSIDIARIES
----------------------------
Name Place of Incorporation
---- ----------------------
[TO BE UPDATED]
U.S. Subsidiaries
-----------------
Continental Water Conditioning California
Company of the Bay Area
Illinois Water Treatment, Inc. Delaware
IP Holding Company Delaware
U.S. Filter/Arrowhead, Inc. Delaware
U.S. Filter/Ionpure, Inc. Massachusetts
U.S. Filter/Permutit, Inc. Delaware
USF Two, Inc. Delaware
U.S. Filter, Inc. Warrendale, PA Delaware
U.S. Filter/Whittier, Inc. Delaware
Continental Penfield Corporation Delaware
U.S. Filter Recovery Services, Inc. Delaware
Polymetrics, Inc. California
Foreign Subsidiaries
--------------------
USF Smogless S.p.A. Italy
USF Limited U.K.
Societe des Ceramiques Techniques France
Xxxxx Xxxxx Alhauser GmbH Germany
Establishments Crouzat S.A. France
Ionpure Technologies SARL France
Ionpure Technologies Ltd. (UK) U.K.
