$100,000,000
DUPONT PHOTOMASKS, INC.
___% CONVERTIBLE SUBORDINATED NOTES DUE 2004
GUARANTEED
by
X.X. XXXXXX DE NEMOURS AND COMPANY
UNDERWRITING AGREEMENT
July ___, 2000
July ___, 2000
Xxxxxx Xxxxxxx & Co. Incorporated
Credit Suisse First Boston Corporation
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
DuPont Photomasks, Inc., a Delaware corporation (the "Company"), proposes
to issue and sell to the several Underwriters named in Schedule I hereto (the
"Underwriters") $100,000,000 aggregate principal amount of its ___% Convertible
Subordinated Notes due 2004 (the "Securities") to be issued pursuant to the
provisions of an Indenture to be dated as of July ___, 2000 (the "Indenture")
among the Company, E. I. du Pont de Nemours and Company, a Delaware corporation
("DuPont"), as guarantor and Chase Bank of Texas, National Association, as
Trustee (the "Trustee"). The Securities will be convertible into shares of
Common Stock of the Company ("Common Stock"), $.01 par value per share (the
"Underlying Securities"). The Securities will be irrevocably and
unconditionally guaranteed as to payment of principal, premium, if any, interest
and all other cash amounts by DuPont (the "Guarantees").
The Company and DuPont have filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including a prospectus,
relating to the Securities and the Guarantees. The registration statement as
amended at the time it becomes effective, including the information (if any)
deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430A under the Securities Act of 1933, as amended (the
"Securities Act"), is hereinafter referred to as the "Registration Statement";
the prospectus in the form first used to confirm sales of Securities is
hereinafter referred to as the "Prospectus" (including, in the case of all
references to the Registration Statement or the Prospectus, unless the context
requires otherwise, documents incorporated by reference therein). If the Company
has filed an abbreviated registration statement to register additional
Securities and Guarantees pursuant to Rule 462(b) under the Securities Act (the
"Rule 462 Registration Statement"), then any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462 Registration
Statement (including, in the case of all references to the Registration
Statement or the Prospectus, unless the context requires otherwise, documents
incorporated by reference therein). The terms "supplement" and "amendment" or
"amend" as used in this Agreement with respect to the Registration Statement or
the Prospectus shall include all documents subsequently filed by the Company or
DuPont with the Commission pursuant to the Securities Exchange Act of 1934,
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as amended (the "Exchange Act"), that are deemed to be incorporated by reference
in the Prospectus. The Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 1999, its Quarterly Reports on Form 10-Q for the quarters ended
September 30, 1999, December 31, 1999 and March 31, 2000, its Current Reports on
Form 8-K dated May 2, 2000 and June 5, 2000, the description of the Common Stock
contained in its Form 8-A/A filed on June 23, 2000 and all subsequent documents
filed by or on behalf of the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act until all the Securities have been
sold are hereinafter referred to as the "Company Incorporated Documents."
DuPont's Annual Report on Form 10-K for the fiscal year ended December 31, 1999,
its Quarterly Report on Form 10-Q for the quarter ended March 31, 2000, its
Current Reports on Form 8-K dated June 29, 2000, April 26, 2000 and April 25,
2000 and all subsequent documents filed by or on behalf of DuPont with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
until all the Securities have been sold are hereinafter referred to as the
"DuPont Incorporated Documents." The Registration Statement excluding the DuPont
Incorporated Documents is hereinafter referred to as the "Company Disclosure."
The Underwriters acknowledge that concurrently with the offering of the
Securities, the Company and DuPont Chemical and Energy Operations, Inc.
("DCEO"), a Delaware corporation and wholly owned subsidiary of DuPont, are
offering an aggregate of _____ shares of the Common Stock of the Company
pursuant to an underwriting agreement dated the date hereof among the Company,
DCEO, DuPont and the underwriters named therein, plus up to an additional ____
shares of Common Stock to be offered upon exercise of an option granted to such
underwriters, pursuant to such underwriting agreement, to cover over-allotments,
if any (the "Common Stock Offering"). The consummation of the offering of the
Securities is not contingent upon the consummation of the Common Stock Offering
or vice versa.
1. Representations and Warranties. The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each Company Incorporated Document complied or will comply
when filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) the
Company Disclosure in the Registration Statement, when it became effective,
did not contain and, as amended or supplemented, if applicable,
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will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder and (iv) the Company
Disclosure in the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set
forth in this paragraph do not apply to (A) statements or omissions in the
Registration Statement or the Prospectus based upon information relating to
any Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use therein or (B) that part of the Registration
Statement that constitutes the Statement of Eligibility (Form T-1) under
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), of
the Trustee.
(c) The Company has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company that is a "significant
subsidiary" for purposes of Rule 1-02 of Regulation S-X of the Securities
Act (collectively, the "Significant Subsidiaries") has been duly
incorporated or organized, is validly existing as a corporation,
partnership or limited liability company in good standing under the laws of
the jurisdiction of its incorporation or organization, as the case may be,
has the power and authority to own its property and to conduct its business
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
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(f) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus.
(g) The Indenture has been duly qualified under the Trust
Indenture Act and 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, subject to applicable bankruptcy, insolvency or
similar laws affecting creditors' rights generally and general principles
of equity.
(h) The Underlying Securities issuable upon conversion of the
Securities have been duly authorized and reserved for issuance upon
conversion of the Securities and, when issued upon conversion of the
Securities in accordance with the terms of the Securities, will be validly
issued, fully paid and non-assessable and the issuance of the Underlying
Securities will not be subject to any preemptive or similar rights.
(i) The Securities have been duly authorized and, when executed
and authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters in accordance with the terms
of this Agreement, will be entitled to the benefits of the Indenture and
will be valid and binding obligations of the Company, enforceable in
accordance with their terms, subject to applicable bankruptcy, insolvency
or similar laws affecting creditors' rights generally and general
principles of equity.
(j) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture and the Securities will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the
Company or any agreement or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or
any subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Indenture or the Securities, except such as may be required by the
securities or Blue Sky laws of the various states in connection with the
offer and sale of the Securities.
(k) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
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condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement).
(l) Each of the Company and the Significant Subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings with, all
federal, state, local, foreign and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to own,
lease, license and use its properties and assets and to conduct its
business in the manner described in the Prospectus, except to the extent
that the failure to obtain, declare or file would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(m) There are no legal or governmental proceedings pending or, to
the Company's knowledge, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described in all
material respects or filed as required.
(n) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in
all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(o) The Company is not and, after giving effect to the offering
and sale of the Securities as described in the Prospectus, will not be an
"investment company" as such term is defined in the Investment Company Act
of 1940, as amended.
(p) The Company and its subsidiaries (i) are in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits,
licenses or other approvals required of them under applicable Environmental
Laws to conduct their respective businesses and (iii) are in compliance
with all terms and conditions of any such permit, license or approval,
except where
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such noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the terms
and conditions of such permits, licenses or approvals would not, singly or
in the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(q) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole, except as
described in the Registration Statement or Prospectus.
(r) Each of the Company and its subsidiaries owns or possesses
adequate licenses or other rights to use all patents, patent rights,
inventions, trade secrets, technology, know-how, trademarks, service marks,
trade names and copyrights which are necessary to conduct its businesses as
described in the Registration Statement and Prospectus or could obtain such
licenses or rights on terms that would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole, and the expiration
of any patents, patent rights, trade secrets, trademarks, service marks,
trade names or copyrights would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole. The Company has not
received any notice of, and has no knowledge of, any infringement of or
conflict with asserted rights of others with respect to, any patents,
patent rights, inventions, trade secrets, technology, know-how, trademarks,
service marks or trade names which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(s) There are no contracts, agreements or understandings between
the Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with
respect to any securities of the Company or to require the Company to
include such securities with the Securities registered pursuant to the
Registration Statement other than the rights of DCEO and its assignees as
described in the Prospectus.
2. Representations and Warranties of DuPont. DuPont represents and
warrants to, and agrees with, each of the Underwriters that:
6
(a) DuPont has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on DuPont and
its subsidiaries, taken as a whole.
(b) This Agreement has been duly authorized, executed and
delivered by DuPont.
(c) The Guarantees have been duly authorized and executed by
DuPont, and when authenticated in accordance with the provisions of the
Indenture and delivered to the Underwriters upon their purchase of the
Securities, will constitute valid and binding obligations of DuPont,
enforceable in accordance with their terms, except as the same may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and by general principles of equity.
(d) The Indenture has been duly authorized, executed and delivered
by, and is a valid and binding agreement of, DuPont, enforceable in
accordance with its terms, except as the same may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and by
general principles of equity.
(e) The execution and delivery by DuPont of, and the performance
by DuPont of its obligations under, this Agreement, the Indenture and the
Guarantees will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of DuPont or any agreement or other
instrument binding upon DuPont or any of its subsidiaries that is material
to DuPont and its subsidiaries, taken as a whole, or any judgment, order or
decree of any governmental body, agency or court having jurisdiction over
DuPont or any of its subsidiaries, and no consent, approval, authorization
or order of, or qualification with, any governmental body or agency is
required for the performance by DuPont of its obligations under this
Agreement, the Indenture and the Guarantees.
(f) DuPont is not, and after giving effect to the offering and
sale of the Securities and the Guarantees as described in the Prospectus,
will not be an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
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(g) (i) Each DuPont Incorporated Document complied or will comply
when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) the
DuPont Incorporated Documents in the Registration Statement, when it became
effective, did not contain and, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and (iii) the DuPont Incorporated
Documents in the Prospectus do not contain and, as amended or supplemented,
if applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
3. Agreements to Sell and Purchase. The Company hereby agrees to sell
to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective principal amounts of Securities set forth in Schedule I
hereto opposite its name at _____% of their principal amount plus accrued
interest, if any, from ___________, 2000 to the date of payment and delivery.
DuPont hereby agrees that, without the prior written consent of Xxxxxx
Xxxxxxx & Co. Incorporated on behalf of the Underwriters, it will not, during
the period beginning on the date hereof and continuing to and including the
Closing Date, offer, sell, contract to sell or otherwise dispose of any debt of
DuPont or issue any guarantee on debt substantially similar to the Securities
(other than the sale of the Guarantees in connection with the sale of the
Securities).
Each of the Company and DuPont hereby agrees that, without the prior
written consent of Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the
Underwriters, it will not, during the period ending 90 days after the date of
the Prospectus, (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock or (ii) enter into any swap
or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the sale of the Securities under this Agreement,
(B) the concurrent public offering of up to _______ shares of the Company's
Common Stock by the Company and DCEO, (C) the issuance by the Company of
8
any shares of Common Stock upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof of which the
Underwriters have been advised in writing or upon conversion of the Securities,
(D) transactions by any person other than the Company relating to shares of
Common Stock or other securities acquired in open market transactions after the
completion of the offering of the Securities or (E) the grant by the Company of
options to purchase shares of Common Stock or the issuance by the Company of
shares of Common Stock under any of the Company's stock incentive plans as in
existence on the date hereof. In addition, DuPont agrees that, without the prior
written consent of Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the
Underwriters, it will not, during the period ending 90 days after the date of
the Prospectus, make any demand for, or exercise any right with respect to, the
registration of any shares of Common Stock or any security convertible into or
exercisable or exchangeable for Common Stock.
4. Terms of Public Offering. The Company and DuPont are advised by you
that the Underwriters propose to make a public offering of their respective
portions of the Securities as soon after the Registration Statement and this
Agreement have become effective as in your judgment is advisable. The Company
and DuPont are further advised by you that the Securities are to be offered to
the public initially at ____% of their principal amount (the "Public Offering
Price") plus accrued interest, if any, from __________________, 2000, to the
date of payment and delivery and to certain dealers selected by you at a price
that represents a concession not in excess of ____% of their principal amount,
and that any Underwriter may allow, and such dealers may reallow, a concession,
not in excess of ____% of their principal amount, to any Underwriter or to
certain other dealers.
5. Payment and Delivery. Payment for the Securities shall be made to
the Company in Federal or other funds immediately available in New York City at
10:00 a.m., New York City time, on July ___, 2000, or at such other time on the
same or such other date, not later than July ___, 2000, as shall be designated
in writing by you. The time and date of such payment are hereinafter referred
to as the "Closing Date."
Payment for the Securities shall be made against delivery to you on the
Closing Date for the respective accounts of the several Underwriters of the
Securities registered in such names and in such denominations as you shall
request in writing not less than one full business day prior to the Closing
Date, with any transfer taxes payable in connection with the transfer of the
Securities to the Underwriters duly paid.
6. Conditions to the Underwriters' Obligations. The obligations of the
Company and DuPont to sell the Securities to the Underwriters and the several
9
obligations of the Underwriters to purchase and pay for the Securities on the
Closing Date are subject to the condition that the Registration Statement shall
have become effective not later than 5:00 p.m. (New York City time) on the date
hereof.
The several obligations of the Underwriters are subject to the following
further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) if applicable, there shall not have occurred any
downgrading, nor shall any notice have been given of any intended
or potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in
the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as such
term is defined for purposes of Rule 436(g)(2) under the
Securities Act;
(ii) if applicable, there shall not have occurred any
downgrading, nor shall any notice have been given of any intended
or potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in
the rating accorded any of DuPont's securities by any "nationally
recognized statistical rating organization", as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
(iii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations
of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement)
that, in your judgment, is material and adverse and that makes it,
in your judgment, impracticable to market the Securities on the
terms and in the manner contemplated in the Prospectus; and
(iv) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations
of DuPont and its subsidiaries, taken as a whole, from that set
forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement)
that, in your judgment, is material and adverse and that makes it,
in your
10
judgment, impracticable to market the Securities on the terms and
in the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date:
(i) a certificate, dated the Closing Date and signed by an
executive officer of the Company, to the effect set forth in
Section 6(a)(i) and to the effect that the representations and
warranties of the Company contained in this Agreement are true and
correct as of the Closing Date and that the Company has complied
with all of the agreements and satisfied all of the conditions on
its part to be performed or satisfied hereunder on or before the
Closing Date; and
(ii) a certificate, dated the Closing Date and signed by an
executive officer of DuPont, to the effect set forth in Section
6(a)(ii) and to the effect that the representations and warranties
of DuPont contained in this Agreement are true and correct as of
the Closing Date and that DuPont has complied with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering either such certificate may
rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxxx, Xxxxxxx & Xxxxxxxx, LLP, counsel for the Company, dated
the Closing Date, to the effect set forth in Exhibit A. Such opinion shall
be rendered to the Underwriters at the request of the Company and shall so
state therein.
(d) The Underwriters shall have received on the Closing Date an
opinion of Xxxx X. Xxxx, Esq., Executive Vice President, General Counsel
and Secretary of the Company, dated the Closing Date, to the effect set
forth in Exhibit B. Such opinion shall be rendered to the Underwriters at
the request of the Company and shall so state therein.
(e) The Underwriters shall have received on the Closing Date an
opinion of Xxxxx X. Xxxxxx, Senior Counsel for DuPont, dated the Closing
Date, to the effect set forth in Exhibit C. Such opinion shall be rendered
to the Underwriters at the request of DuPont and shall so state therein.
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(f) The Underwriters shall have received on the Closing Date an
opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, dated the
Closing Date, to the effect set forth in Exhibit D.
(g) The Underwriters shall have received, on each of the date
hereof and the Closing Date, letters dated the date hereof or the Closing
Date, as the case may be, in form and substance satisfactory to the
Underwriters, from PricewaterhouseCoopers LLP, independent public
accountants, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to
the financial statements and certain financial information of the Company
and DuPont contained or incorporated by reference in the Registration
Statement and the Prospectus; provided that the letters delivered on the
Closing Date shall use a "cut-off date" not earlier than the date hereof.
(h) The "lock-up" agreements, each substantially in the form of
Exhibit E hereto, between you and the executive officers and directors of
the Company relating to sales and certain other dispositions of shares of
Common Stock or certain other securities, delivered to you on or before the
date hereof, shall be in full force and effect on the Closing Date.
7. Covenants of the Company. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, a signed copy of the
Registration Statement (including exhibits thereto and documents
incorporated therein by reference) and for delivery to each other
Underwriter a conformed copy of the Registration Statement (without
exhibits thereto and including documents incorporated therein by reference)
and to furnish to you in New York City, without charge, prior to 5:00 P.M.
local time on the business day following the date of this Agreement and
during the period mentioned in Section 7(c) below, as many copies of the
Prospectus and any supplements and amendments thereto or to the
Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration Statement or
the Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which you reasonably object in writing, subject however, to compliance with
the Securities Act, the Exchange Act, and the rules and regulations
thereunder, and to file with the Commission within the applicable period
specified in Rule 424(b) under the Securities Act any prospectus required
to be filed pursuant to such Rule.
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(c) If, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur or
condition exist as a result of which it is necessary to amend or supplement
the Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if, in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Prospectus to comply with applicable
law, forthwith to prepare, file with the Commission and furnish, at its own
expense, to the Underwriters and to the dealers (whose names and addresses
you will furnish to the Company) to which Securities may have been sold by
you on behalf of the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the statements
in the Prospectus as so amended or supplemented will not, in the light of
the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(e) To make generally available to the Company's security holders
and to you as soon as practicable an earning statement covering the twelve-
month period ending September 30, 2001, that satisfies the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(f) During the period beginning on the date hereof and continuing
to and including the Closing Date, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company or warrants to
purchase or otherwise acquire debt securities of the Company substantially
similar to the Securities (other than (i) the Securities and (ii)
commercial paper issued in the ordinary course of business), without the
prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated.
(g) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to be paid
all expenses incident to the performance of its obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the
Company's counsel, the Company's accountants and counsel and accountants
for DuPont in connection with the registration and delivery of
13
the Securities and the Guarantees under the Securities Act and all other
fees or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all printing
costs associated therewith, and the mailing and delivering of copies
thereof to the Underwriters and dealers, in the quantities hereinabove
specified, (ii) all costs and expenses related to the transfer and delivery
of the Securities to the Underwriters, including any transfer or other
taxes payable thereon, (iii) the cost of printing or producing any Blue Sky
or Legal Investment memorandum in connection with the offer and sale of the
Securities under state securities laws and all expenses in connection with
the qualification of the Securities for offer and sale under state
securities laws as provided in Section 7(d) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the Underwriters
in connection with such qualification and in connection with the Blue Sky
or Legal Investment memorandum, (iv) all filing fees and the reasonable
fees and disbursements of counsel to the Underwriters incurred in
connection with the review and qualification of the offering of the
Securities by the National Association of Securities Dealers, Inc., (v) any
fees charged by the rating agencies for the rating of the Securities, (vi)
the cost of printing certificates representing the Securities and the
Guarantees, (vii) the costs and charges of any trustee, transfer agent,
registrar or depositary, (viii) the cost of the preparation, issuance and
delivery of the Securities and the Guarantees, (ix) the costs and expenses
of the Company relating to investor presentations on any "road show"
undertaken in connection with the marketing of the offering of the
Securities and the Guarantees, including, without limitation, expenses
associated with the production of road show slides and graphics, fees and
expenses of any consultants engaged in connection with the road show
presentations with the prior approval of the Company, travel and lodging
expenses of the representatives and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with the
road show, and (x) all other costs and expenses incident to the performance
of the obligations of the Company hereunder for which provision is not
otherwise made in this Section. It is understood, however, that except as
provided in this Section, Section 9 entitled "Indemnity and Contribution",
and the last paragraph of Section 11 below, the Underwriters will pay all
of their costs and expenses, including fees and disbursements of their
counsel, transfer taxes payable on resale of any of the Securities by them
and any advertising expenses connected with any offers they may make.
The provisions of this Section 7 and Section 8 below shall not supersede or
otherwise affect any agreement that the Company and DuPont may otherwise have
for the allocation of such expenses among themselves.
14
8. Covenants of DuPont. In further consideration of the agreements of
the Underwriters contained in this Agreement, DuPont covenants with each
Underwriter as follows:
(a) To endeavor to qualify the Guarantees for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(b) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to be
paid all expenses incident to the performance of its obligations under
this Agreement.
(c) To make generally available to DuPont's security holders and to
you as soon as practicable an earning statement covering the twelve-month
period ending September 30, 2001, that satisfies the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
9. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon (i) information relating to any
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use therein or (ii information directly relating to DuPont
included in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto and the DuPont Incorporated
Documents; provided that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any such losses, claims, damages or liabilities
purchased Securities, or any person controlling such Underwriter, if a copy of
the Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by or on
behalf of such Underwriter to such person, if required by
15
law so to have been delivered, at or prior to the written confirmation of the
sale of the Securities to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses, claims,
damages or liabilities, unless such failure is the result of noncompliance by
the Company with Section 7(a) hereof.
(b) DuPont agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to each Underwriter but only
with reference to information directly relating to DuPont included in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto and the DuPont Incorporated Documents.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement, DuPont, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company or DuPont within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the foregoing indemnity from the Company and DuPont to
such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 9(a), 9(b) or 9(c), such person (the "indemnified
party") shall promptly notify the person against whom such indemnity may be
sought (the "indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the reasonable fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees
16
and expenses of more than one separate firm (in addition to any local counsel)
for (i) all Underwriters and all persons, if any, who control any Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, (ii) the Company, its directors, its officers who sign the
Registration Statement, and each person, if any, who controls the Company within
the meaning of either such Section and (iii) DuPont, its directors, its officers
who sign the Registration Statement, and each person, if any, who controls
DuPont within the meaning of either such Section and that all such reasonable
fees and expenses shall be reimbursed as they are incurred. In the case of any
such separate firm for the Underwriters and such control persons of the
Underwriters, such firm shall be designated in writing by Xxxxxx Xxxxxxx & Co.
Incorporated. In the case of any such separate firm for the Company and such
directors, officers and control persons of the Company, such firm shall be
designated in writing by the Company. In the case of any such separate firm for
DuPont and such directors, officer and control persons of DuPont, such firm
shall be designated in writing by DuPont. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(e) To the extent the indemnification provided for in Section 9(a), 9(b)
or 9(c) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the
Securities or (ii if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company or DuPont on the one hand and the Underwriters on the
other hand in connection with the offering of the Securities shall be deemed to
be in the same
17
respective proportions as the net proceeds from the offering of the Securities
(before deducting expenses) received by the Company and DuPont and the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover of the Prospectus, bear to the
aggregate Public Offering Price of the Securities. The relative fault of the
Company or DuPont on the one hand and the Underwriters on the other hand shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or DuPont or by
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this Section
9 are several in proportion to the respective principal amounts of Securities
they have purchased hereunder, and not joint.
(f) The Company, DuPont and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 9 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in Section 9(e). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 9, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 9 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(g) The indemnity and contribution provisions contained in this Section
9 and the representations, warranties and other statements of the Company and
DuPont contained in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Company, its officers or directors or
any person controlling the Company or by or on behalf of DuPont, its officers or
18
directors or any person controlling DuPont and (ii acceptance of and payment for
any of the Securities.
10. Termination. This Agreement shall be subject to termination by
notice given by you to the Company and DuPont, if (a) after the execution and
delivery of this Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board of Options Exchange,
the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading of
any securities of the Company shall have been suspended on any exchange or in
any over-the-counter market, (ii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis that,
in your judgment, is material and adverse and (b) in the case of any of the
events specified in clauses 10(a)(i) through 10(a)(iv), such event, singly or
together with any other such event, makes it, in your judgment, impracticable to
market the Securities on the terms and in the manner contemplated in the
Prospectus.
11. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the Underwriters shall fail or
refuse to purchase Securities that it has or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of the
Securities to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the principal amount of Securities
set forth opposite their respective names in Schedule I bears to the aggregate
principal amount of Securities set forth opposite the names of all such non-
defaulting Underwriters, or in such other proportions as you may specify, to
purchase the Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase on such date; provided that in no event shall
the principal amount of Securities that any Underwriter has agreed to purchase
pursuant to this Agreement be increased pursuant to this Section 11 by an amount
in excess of one-ninth of such principal amount of Securities without the
written consent of such Underwriter. If, on the Closing Date, any Underwriter
or Underwriters shall fail or refuse to purchase Securities and the aggregate
principal amount of Securities with respect to which such default occurs is more
than one-tenth of the aggregate principal amount of Securities to be purchased
on such date, and arrangements satisfactory to you, the Company and DuPont for
the purchase of such Securities are not made within 36 hours after such default,
this Agreement shall terminate
19
without liability on the part of any non-defaulting Underwriter, the Company or
DuPont. In any such case any of you, the Company or DuPont shall have the right
to postpone the Closing Date, but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company or DuPont to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company or DuPont shall be unable to perform its obligations
under this Agreement, the party so failing, refusing or unable will reimburse
the Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the
fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated
hereunder.
12. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
DUPONT PHOTOMASKS, INC.
By:
------------------------------
Name:
Title:
20
E. I. DU PONT DE NEMOURS AND COMPANY
By:
--------------------------------
Name:
Title:
Accepted as of the date hereof
Xxxxxx Xxxxxxx & Co. Incorporated
Credit Suisse First Boston Corporation
Acting severally on behalf of themselves and
the several Underwriters named in
Schedule I hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By:
----------------------------------------
Name:
Title:
21
SCHEDULE I
Principal Amount of
Securities To Be
Underwriter Purchased
----------------------------------------------- -------------------
Xxxxxx Xxxxxxx & Co. Incorporated..............
Credit Suisse First Boston Corporation.........
-------------------
Total: ................................... $100,000,000
===================
EXHIBIT A
OPINION OF OUTSIDE COUNSEL FOR THE COMPANY
The opinion of Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, counsel for the Company, to
be delivered pursuant to Section 6(c) of the Underwriting Agreement shall be to
the effect that:
1. The Company is validly existing as a corporation in good standing
under the laws of the State of Delaware; the Company has the corporate power and
authority to own its property and to conduct its business as described in the
Prospectus; and the Company is duly qualified to transact business and is in
good standing in the states of Texas and California.
2. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
3. The Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and delivered
to and paid for by the Underwriters in accordance with the terms of the
Underwriting Agreement, will be valid and binding obligations of the Company,
enforceable in accordance with their terms, except as the same may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
by general principles of equity, and will be entitled to the benefits of the
Indenture pursuant to which such Securities are to be issued.
4. The Underlying Securities issuable upon conversion of the Securities
have been duly authorized and reserved for issuance upon conversion of the
Securities and, when issued upon conversion of the Securities in accordance with
the terms of the Securities, will be validly issued, fully paid and non-
assessable and the issuance of the Underlying Securities will not be subject to
any statutory or, to such counsel's knowledge, contractual preemptive or similar
rights.
5. The Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized, executed and delivered by, and is a valid and
binding agreement of, the Company, enforceable in accordance with its terms,
except as the same may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and by general principles of equity.
6. The execution and delivery by the Company of, and the performance by
the Company of its obligations under, the Underwriting Agreement, the Indenture
and the Securities will not contravene any applicable provision of the laws of
the State of Texas or the General Corporation Law of the State of Delaware, or
the certificate of incorporation or by-laws of the Company.
7. To such counsel's knowledge, (A) there are no legal or governmental
proceedings pending or threatened against the Company or any of its
subsidiaries, or to which the Company, any of its subsidiaries or any of its
properties is subject, that are required to be described in the Registration
Statement or the Prospectus and are not so described and (B) there are no
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not so described or filed.
8. The statements in the Prospectus under the captions "Description of
the Notes" and "Description of Capital Stock," insofar as such statements
constitute a summary of the Securities and the capital stock of the Company,
provide a fair summary of the Securities and the capital stock of the Company in
all material respects, and the statements (A) in the Prospectus under the
caption "Transactions and Relationships Between Us and E. I. du Pont de Nemours
and Company" and set forth in the first paragraph, second paragraph (other than
the first sentence thereof), fifth paragraph, sixth paragraph and ninth
paragraph under the caption "Underwriters" and (B) in the Registration Statement
in Item 15, in each case insofar as such statements constitute summaries of the
legal matters or documents referred to therein, provide a fair summary of such
legal matters and documents in all material respects.
9. The statements regarding the United States federal income tax
consequences of the purchase, ownership and disposition (including conversion)
of the Securities and the Underlying Securities set forth in the Prospectus
under the caption "Material Federal Income Tax Considerations" insofar as such
statements constitute statements of law or legal conclusions, are correct in all
material respects.
10. Such counsel (A) is of the opinion that each Company Incorporated
Document (except for financial statements and the notes thereto and the
schedules and other financial and statistical data included therein, as to which
such counsel need not express any opinion) complied as to form when filed with
the Commission in all material respects with the requirements of the Exchange
Act, (B) is of the opinion that the Registration Statement and Prospectus
(except for financial statements and the notes thereto and the schedules and
other financial and statistical data included therein, as to which such counsel
need not express any opinion) comply as to form in all material respects with
the requirements of
A-2
the Securities Act, (C) has no reason to believe that (except for financial
statements, including the notes thereto, and schedules and other financial and
statistical data included therein, as to which such counsel need not express any
belief) Company Disclosure in the Registration Statement and the prospectus
included therein at the time the Registration Statement became effective
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading and (D) has no reason to believe that (except for financial
statements, including the notes thereto, and schedules and other financial and
statistical data included therein, as to which such counsel need not express any
belief) Company Disclosure in the Prospectus contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
With respect to this paragraph 10, counsel may state that their opinion and
belief are based upon their participation in the preparation of the Registration
Statement and Prospectus (and any amendments or supplements thereto) and
documents incorporated therein by reference and review and discussion of the
contents thereof but are without independent check or verification except as
specified.
A-3
EXHIBIT B
OPINION OF COUNSEL FOR COMPANY
The opinion of Xxxx X. Xxxx, Esq., Executive Vice President, General
Counsel and Secretary of the Company, to be delivered pursuant to Section 6(d)
of the Underwriting Agreement shall be to the effect that:
1. The Company has been duly incorporated and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
2. Each subsidiary of the Company that is a "significant subsidiary" for
purposes of Rule 1-02 of Regulation S-X of the Securities Act (collectively, the
"Significant Subsidiaries") has been duly incorporated or organized, is validly
existing as a corporation or partnership in good standing under the laws of the
jurisdiction of its incorporation or organization, as the case may be, has the
power and authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole.
3. The execution and delivery by the Company of, and the performance by
the Company of its obligations under, the Underwriting Agreement, the Indenture
and the Securities will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or, to the best of such
counsel's knowledge, any agreement or other instrument binding upon the Company
or any of its subsidiaries that is material to the Company and its subsidiaries,
taken as a whole, or, any judgment, order or decree of any governmental body,
agency or court known to such counsel having jurisdiction over the Company or
any subsidiary, and to such counsel's knowledge, no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by the Company of its obligations under
the Underwriting Agreement, the Indenture or the Securities, except such as may
be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Securities.
4. Each of the Company and the Significant Subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits of and
from, and has made all declarations and filings with, all federal, state, local,
foreign and other governmental authorities, all self-regulatory organizations
and all courts and other tribunals, to own, lease, license and use its
properties and assets and to conduct its business, except to the extent that the
failure to obtain, declare or file would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
5. The Company is not, and after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as described
in the Prospectus, will not be an "investment company" as such term is defined
in the Investment Company Act of 1940, as amended.
B-2
EXHIBIT C
OPINION OF COUNSEL FOR DUPONT
The opinion of Xxxxx X. Xxxxxx, Senior Counsel for DuPont, to be delivered
pursuant to Section 6(e) of the Underwriting Agreement shall be to the effect
that:
1. DuPont is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business and is duly qualified
to transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on DuPont and its
subsidiaries, taken as a whole.
2. The Underwriting Agreement has been duly authorized, executed and
delivered by DuPont.
3. The Guarantees have been duly authorized by DuPont and, when executed
and authenticated in accordance with the provisions of the Indenture and
delivered to the Underwriters upon payment of the Securities, will constitute
valid and binding obligations of DuPont, enforceable in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and by general principles of equity.
4. The Indenture has been duly authorized, executed and delivered by, and
is a valid and binding agreement of, DuPont enforceable in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and by general principles of equity.
5. The execution and delivery by DuPont of, and the performance by DuPont
of its obligations under, the Underwriting Agreement, the Indenture and the
Guarantees will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of DuPont or, to the best of such
counsel's knowledge, any agreement or other instrument binding upon DuPont or,
any judgment, order or decree of any governmental body, agency or court known to
such counsel having jurisdiction over DuPont, and to such counsel's knowledge no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by DuPont of its
obligations under the Underwriting Agreement, the Indenture or the Guarantees.
6. DuPont is not, and after giving effect to the offering and sale of the
Securities and the Guarantees as described in the Prospectus, will not be an
"investment company" as such term is defined in the Investment Company Act of
1940, as amended.
7. Such counsel (A) is of the opinion that each DuPont Incorporated
Document in the Registration Statement and Prospectus (except for financial
statements and schedules and other financial or statistical data included
therein as to which such counsel need not express any opinion) complied as to
form when filed with the Commission in all material respects with the Exchange
Act and the rules and regulations of the Commission thereunder, (B) has no
reason to believe that (except for financial statements and schedules and other
financial or statistical data included therein as to which such counsel need not
express any belief) DuPont Incorporated Documents in the Registration Statement
and the prospectus included therein at the time the Registration Statement
became effective contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading and (C) has no reason to believe that (except
for financial statements and schedules and other financial or statistical data
included therein as to which such counsel need not express any belief) DuPont
Incorporated Documents in the Prospectus contain any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
C-2
EXHIBIT D
OPINION OF XXXXX XXXX & XXXXXXXX
The opinion of Xxxxx Xxxx & Xxxxxxxx to be delivered pursuant to Section
6(f) of the Underwriting Agreement shall be to the effect that:
1. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company and DuPont.
2. The Securities have been duly authorized by the Company and, when
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters in accordance with the terms
of the Underwriting Agreement, will be valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
general principles of equity, and will be entitled to the benefits of the
Indenture pursuant to which such Securities are to be issued.
4. The Underlying Securities issuable upon conversion of the Securities
have been duly authorized and reserved for issuance upon conversion of the
Securities and, when issued upon conversion of the Securities in accordance with
the terms of the Securities, will be validly issued, fully paid and non-
assessable, and the issuance of the Underlying Securities will not be subject to
any preemptive or similar rights.
5. The Guarantees have been duly authorized and executed by DuPont, and
when authenticated in accordance with the provisions of the Indenture and
delivered to the Underwriters upon their purchase of the Securities, will
constitute valid and binding obligations of DuPont, enforceable in accordance
with their terms, except as the same may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and by general principles of
equity.
6. The Indenture has been duly authorized, executed and delivered by, and
is a valid and binding agreement of, the Company, enforceable in accordance with
its terms, except as the same may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and by general principles of
equity.
7. The Indenture has been duly authorized, executed and delivered by, and
is a valid and binding agreement of, DuPont, enforceable in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and by general principles of equity.
8. The statements in the Prospectus under the captions "Description of
Notes" and "Underwriters", insofar as such statements constitute summaries of
the documents referred to therein, fairly summarize the matters referred to
therein.
9. Such counsel (A) is of the opinion that the Registration Statement and
Prospectus (except for financial statements and schedules and other financial or
statistical data included therein as to which such counsel need not express any
opinion) comply as to form in all material respects with the Securities Act and
the applicable rules and regulations of the Commission thereunder, (B) has no
reason to believe that (except for financial statements and schedules and other
financial or statistical data included therein as to which such counsel need not
express any belief) the Registration Statement and the prospectus included
therein at the time the Registration Statement became effective contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
and (C) has no reason to believe that (except for financial statements and
schedules and other financial or statistical data included therein as to which
such counsel need not express any belief) the Prospectus contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
With respect to paragraph 9 above, Xxxxx Xxxx & Xxxxxxxx may state that
their opinion and belief are based upon their participation in the preparation
of the Registration Statement and Prospectus (and any amendments or supplements
thereto) and review and discussion of the contents thereof (including the review
of, but not participation in the preparation of, the incorporated documents),
but are without independent check or verification except as specified.
D-2
EXHIBIT E
[FORM OF LOCK-UP LETTER]
June__, 2000
Xxxxxx Xxxxxxx & Co. Incorporated
Credit Suisse First Boston Corporation
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx
Xxxxxxx") proposes to enter into an Underwriting Agreement (the "Underwriting
Agreement") with DuPont Photomasks, Inc., a Delaware corporation (the "Company")
and E.I. du Pont de Nemours and Company, a Delaware corporation ("DuPont"),
providing for the offering (the "Public Offering") by the several Underwriters,
including Xxxxxx Xxxxxxx (the "Underwriters"), of $100,000,000 principal amount
of the Convertible Subordinated Notes due 2004 of the Company (the
"Securities"). The Securities will be convertible into shares of Common Stock
of the Company, $0.1 par value (the "Common Stock"), and the payments on the
Securities will be guaranteed by DuPont.
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
hereby agrees that, without the prior written consent of Xxxxxx Xxxxxxx on
behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending 90 days after the date of the final prospectus relating
to the Public Offering (the "Prospectus"), (1) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock
or (2) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of the Common
Stock, whether any such transaction described in clause (1) or (2) above is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to transactions relating to
shares of Common Stock or other securities acquired in open market transactions
after the completion of the
Public Offering. In addition, the undersigned agrees that, without the prior
written consent of Xxxxxx Xxxxxxx on behalf of the Underwriters, it will not,
during the period commencing on the date hereof and ending 90 days after the
date of the Prospectus, make any demand for or exercise any right with respect
to, the registration of any shares of Common Stock or any security convertible
into or exercisable or exchangeable for Common Stock.
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will be made only
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
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Name
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Address
E-2
