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__________ Shares
DUPONT PHOTOMASKS, INC.
Common Stock, $.01 par value
UNDERWRITING AGREEMENT
July __, 2000
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July __, 2000
Morgan Stanley & Co. Incorporated
Credit Suisse First Boston Corporation
Bear, Stearns & Co. Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
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"), and DuPont Chemical and Energy Operations, Inc. ("DCEO"), a
Delaware corporation and wholly owned subsidiary of E. I. du Pont de Nemours and
Company, a Delaware corporation ("DuPont"), proposes to sell to the
Underwriters, an aggregate of __________ shares of the Common Stock, $.01 par
value per share, of the Company (the "Firm Shares"), of which __________ shares
are to be issued and sold by the Company and __________ shares are to be sold by
DCEO.
DCEO also proposes to sell to the several Underwriters not more than an
additional _________ shares of the Common Stock, $.01 par value per share, of
the Company (the "Additional Shares"), if and to the extent that you, as
Managers of the offering, shall have determined to exercise, on behalf of the
Underwriters, the right to purchase such Additional Shares granted to the
Underwriters in Section 3 hereof. The Firm Shares and the Additional Shares are
hereinafter collectively referred to as the "Shares." The shares of Common
Stock, $.01 par value per share, of the Company to be outstanding after giving
effect to the sales contemplated hereby are hereinafter referred to as the
"Common Stock." The Company and DCEO are hereinafter sometimes referred to
collectively as the "Sellers" and each individually as a "Seller."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to
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the Shares. The registration statement as amended at the time it becomes
effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933, as amended (the "Securities Act"), is hereinafter
referred to as the "Registration Statement"; and the related prospectus in the
form first used to confirm sales of Shares is hereinafter referred to as the
"Prospectus" (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 shares of Common Stock pursuant to
Rule 462(b) under the Securities Act (the "Rule 462 Registration Statement"),
then any reference herein to the term "Registration Statement" shall be deemed
to include such Rule 462 Registration Statement (including, in the case of all
references to the Registration Statement or the Prospectus, documents
incorporated therein by reference). The terms "supplement" and "amendment" or
"amend" as used in this Agreement shall include all documents subsequently filed
by the Company with the Commission pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"), that are deemed to be incorporated by
reference in the Prospectus.
1. Representations and Warranties of the Company. The Company represents
and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with
the Exchange Act and the applicable rules and regulations of the
Commission thereunder, (ii) the Registration Statement, when it became
effective, did not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (iii) the
Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with
the Securities Act and the applicable rules and regulations of the
Commission thereunder and (iv) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except
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that the representations and warranties set forth in this Section 1(b)
do not apply to 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.
(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.
(f) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus.
(g) The shares of Common Stock (including the Shares to be sold
by DCEO) outstanding prior to the issuance of the Shares to be sold by
the Company have been duly authorized and are validly issued, fully
paid and non-assessable.
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(h) The Shares to be sold by the Company have been duly
authorized and, when issued and delivered in accordance with the terms
of this Agreement, will be validly issued, fully paid and non-
assessable, and the issuance of such Shares will not be subject to any
preemptive or similar rights.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not contravene any provision of applicable law or the certificate
of incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of, or qualification with,
any governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, except such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(k) 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.
(l) There are no legal or governmental proceedings pending or, to
the Company's knowledge, threatened to which the
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Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that
are required to be described in the Registration Statement or the
Prospectus and are not so described in all material respects or any
statutes, regulations, contracts or other documents that are required
to be described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement that are not
described in all material respects or filed as required.
(m) 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.
(n) The Company is not and, after giving effect to the offering
and sale of the Shares as described in the Prospectus, will not be an
"investment company" as such term is defined in the Investment Company
Act of 1940, as amended.
(o) The Company and its subsidiaries (i) are in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii)
are in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(p) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities or any potential
liabilities to third parties) which would, singly or in the
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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.
(q) 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.
(r) There are no contracts, agreements or understandings between
the Company and any person granting such person the right to require
the Company to file a registration statement under the Securities Act
with respect to any securities of the Company or to require the
Company to include such securities with the Shares registered pursuant
to the Registration Statement other than the rights of DCEO and its
assignees as described in the Prospectus.
2. Representations and Warranties of DCEO and DuPont. DCEO and DuPont,
jointly and severally represent and warrant to and agree with each of the
Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered
by or on behalf of each of DCEO and DuPont.
(b) The execution and delivery by each of DCEO and DuPont of, and the
performance by DCEO and DuPont of their respective obligations under, this
Agreement will not contravene any provision of
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applicable law, or the certificate of incorporation or by-laws of DCEO or
DuPont, or any agreement or other instrument binding upon DCEO or DuPont or
any judgment, order or decree of any governmental body, agency or court
having jurisdiction over DCEO or DuPont, and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by DCEO or DuPont of their
respective obligations under this Agreement, except such as may be required
by the securities or Blue Sky laws of the various states in connection with
the offer and sale of the Shares.
(c) DCEO has, and on the Closing Date will have, valid title to the
Shares to be sold by it and the legal right and power, and all
authorization and approval required by law, to enter into this Agreement,
and to sell, transfer and deliver the Shares to be sold by it.
(d) Upon payment for the Shares to be sold by DCEO as provided herein,
delivery of such Shares, as directed by the Underwriters, to Cede & Co.
("Cede") or such other nominee as may be designated by The Depository Trust
Company ("DTC"), registration of such Shares in the name of Cede or such
other nominee and the crediting of such Shares on the books of DTC to
"securities accounts" (as defined in Section 8-501 of the Uniform
Commercial Code (the "UCC")) of the Underwriters, (A) DTC shall be a
"protected purchaser" of such Shares within the meaning of Section 8-303 of
the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire
a valid security entitlement in respect of such Shares and (C) no action
based on any "adverse claim" (as defined in Section 8-102 of the UCC) to
such Shares may be asserted against the Underwriters with respect to such
security entitlement; it being understood that for the purpose of this
representation and warranty, DCEO may assume that when such payment,
delivery and crediting occur, (x) such Shares will have been registered in
the name of Cede or another nominee designated by DTC, in each case on the
Company's share registry in accordance with its certificate of
incorporation, bylaws and applicable law, (y) DTC will be registered as a
"clearing corporation" within the meaning of Section 8-102 of the UCC, and
(z) appropriate entries to the securities accounts of the several
Underwriters on the records of DTC will have been made pursuant to the UCC.
3. Agreements to Sell and Purchase. Each Seller, severally and not
jointly, 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
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from such Seller at $_____ a share (the "Purchase Price") the number of Firm
Shares (subject to such adjustments to eliminate fractional shares as you may
determine) that bears the same proportion to the number of Firm Shares to be
sold by such Seller as the number of Firm Shares set forth in Schedule I hereto
opposite the name of such Underwriter bears to the total number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, DCEO agrees to sell to the
Underwriters up to __________ Additional Shares and the Underwriters shall have
a one-time right to purchase, severally and not jointly, up to __________
Additional Shares at the Purchase Price. If you, on behalf of the Underwriters,
elect to exercise such option, you shall so notify DCEO in writing not later
than 30 days after the date of this Agreement, which notice shall specify the
number of Additional Shares to be purchased by the Underwriters and the date on
which such shares are to be purchased. Such date may be the same as the Closing
Date (as defined below) but not earlier than the Closing Date nor later than ten
business days after the date of such notice. Additional Shares may be purchased
as provided in Section 5 hereof solely for the purpose of covering over-
allotments made in connection with the offering of the Firm Shares. If any
Additional Shares are to be purchased, each Underwriter agrees, severally and
not jointly, to purchase from DCEO the number of Additional Shares (subject to
such adjustments to eliminate fractional shares as you may determine) that bears
the same proportion to the total number of Additional Shares to be purchased as
the number of Firm Shares set forth in Schedule I hereto opposite the name of
such Underwriter bears to the total number of Firm Shares.
Each of the Company, DCEO and DuPont hereby agrees that, without the prior
written consent of Morgan Stanley & 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 Shares to be sold hereunder, (B) the
issuance by the Company of any shares of Common Stock upon the exercise of an
option or warrant or the conversion of a security outstanding on the date hereof
of which the Underwriters have been advised in writing, (C) transactions by any
person other than the Company relating to shares of Common Stock or other
securities acquired in open market
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transactions after the completion of the offering of the Shares or (D) the grant
by the Company of options to purchase shares of Common Stock or the issuance by
the Company of shares of Common Stock under any of the Company's stock incentive
plans as in existence on the date hereof. In addition, each of DCEO and DuPont
agrees that, without the prior written consent of Morgan Stanley & 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 Sellers are advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Sellers are further
advised by you that the Shares are to be offered to the public initially at
$_____ a share (the "Public Offering Price") and to certain dealers selected by
you at a price that represents a concession not in excess of $_____ a share
under the Public Offering Price, and that any Underwriter may allow, and such
dealers may reallow, a concession, not in excess of $_____ a share, to any
Underwriter or to certain other dealers.
5. Payment and Delivery. Payment for the Firm Shares to be sold by each
Seller shall be made to such Seller in Federal or other funds immediately
available in New York City against delivery of such Firm Shares for the
respective accounts of the several Underwriters at the office of Davis Polk &
Wardwell, 450 Lexington Avenue, New York, New York at 10:00 A.M., local 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 any Additional Shares shall be made to DCEO in Federal or other
funds immediately available in New York City against delivery of such Additional
Shares for the respective accounts of the several Underwriters at the office of
Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York at 10:00 A.M.,
local time, on the date specified in the notice described in Section 3 or on
such other date, in any event not later than August __, 2000, as shall be
designated in writing by you. The time and date of such payment are hereinafter
referred to as the "Option Closing Date."
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing
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the Firm Shares and Additional Shares shall be delivered to you on the Closing
Date or the Option Closing Date, as the case may be, for the respective accounts
of the several Underwriters, with any transfer taxes payable in connection with
the transfer of the Shares to the Underwriters duly paid, against payment of the
Purchase Price therefor.
6. Conditions to the Underwriters' Obligations. The obligations of the
Sellers to sell the Shares to the Underwriters and the several obligations of
the Underwriters to purchase and pay for the Shares on the Closing Date are
subject to the condition that the Registration Statement shall have become
effective not later than 5:00 p.m. (New York time) on the date hereof.
The several obligations of the Underwriters are subject to the following
further conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
(i) if applicable, there shall not have occurred any
downgrading, nor shall any notice have been given of any intended
or potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in
the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as such
term is defined for purposes of Rule 436(g)(2) under the
Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole,
from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement) that, in your judgment, is material and adverse and
that makes it, in your judgment, impracticable to market the
Shares on the terms and in the manner contemplated in the
Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in clause 6(a)(i) above and to
the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing
Date and that the Company has
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complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or
before the Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of Brobeck, Phleger & Harrison LLP, counsel for the Company,
dated the Closing Date, to the effect that:
(i) the Company is validly existing as a corporation in
good standing under the laws of the 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;
(ii) the shares of Common Stock (including the Shares to
be sold by DCEO) outstanding prior to the issuance of the Shares
to be sold by the Company have been duly authorized and validly
issued and are, to our knowledge, fully paid and non-assessable,
and the Shares to be sold by DCEO are fully paid and non-
assessable;
(iii) the Shares to be sold by the Company have been duly
authorized and, when issued and delivered in accordance with the
terms of this Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be
subject to any statutory or, to our knowledge, contractual
preemptive or similar rights;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company;
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(v) the statements (A) in the Prospectus under the captions
"Transactions and Relationships Between Us and E. I. du Pont de
Nemours and Company," and "Description of Capital Stock" and set
forth in the first paragraph, second paragraph (other than the
first sentence thereof), fourth paragraph (other than the last
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;
(vi) 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; and
(vii) such counsel (A) is of the opinion that each document
of the Company incorporated by reference in the Registration
Statement and Prospectus (except for financial statements and 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 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 requirements of 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) the Registration Statement and the
prospectus included therein
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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) the Prospectus contains any untrue statement of a
material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(d) The Underwriters shall have received on the Closing Date an
opinion of John M. Lynn, Esq., Executive Vice President, General Counsel
and Secretary of the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
(ii) each Significant Subsidiary of the Company has been duly
incorporated or organized, is validly existing as a corporation or
partnership in good standing under the laws of the jurisdiction of its
incorporation or organization, as the case may be, has the power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole;
(iii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not contravene any provision of applicable law or the certificate
of incorporation or by-laws of the Company or, to
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the best of such counsel's knowledge, any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or,
any judgment, order or decree of any governmental body, agency or
court known to such counsel having jurisdiction over the Company or
any subsidiary, and to such counsel's knowledge no consent, approval,
authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of its
obligations under this Agreement, except such as may be required by
the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Shares;
(iv) each of the Company and the Significant Subsidiaries has
all necessary consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all declarations
and filings with, all federal, state, local, foreign and other
governmental authorities, all self-regulatory organizations and all
courts and other tribunals, to own, lease, license and use its
properties and assets and to conduct its business, except to the
extent that the failure to obtain or file would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole; and
(v) the Company is not and, after giving effect to the
offering and sale of the Shares as described in the Prospectus, will
not be an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
With respect to the opinions set forth in subsection (ii) above, to the
extent such opinions address questions of law other than those of the State of
Texas, the State of California, or the General Corporation Law of the State of
Delaware, such counsel may deliver opinions of local counsel as to such matters.
(e) The Underwriters shall have received on the Closing Date:
(i) a certificate, dated the Closing Date and signed by an
officer of DuPont, to the effect that the representations and
warranties of DuPont contained in this Agreement are true and correct
as of the Closing Date and that DuPont has complied in all material
respects with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or
before the Closing Date; and
14
<PAGE>
(ii) a certificate, dated the Closing Date and signed by an
officer of DCEO, to the effect that the representations and warranties
of DCEO contained in this Agreement are true and correct as of the
Closing Date and that DCEO has complied in all material respects with
all of the agreements and satisfied all of the conditions on its part
to be performed or satisfied hereunder on or before the Closing Date.
(f) The Underwriters shall have received on the Closing Date an
opinion of Senior Counsel for DuPont on behalf of DCEO and DuPont, dated
the Closing Date, to the effect that:
(i) this Agreement has been duly authorized, executed and
delivered by or on behalf of each of DCEO and DuPont;
(ii) the execution and delivery by each of DCEO and DuPont of,
and the performance by DCEO and DuPont of their respective obligations
under, this Agreement will not contravene any provision of applicable
law, or the certificate of incorporation or by-laws of DCEO or DuPont,
or, to the best of such counsel's knowledge, any agreement or other
instrument binding upon DCEO or DuPont or, to the best of such
counsel's knowledge, any judgment, order or decree of any governmental
body, agency or court having jurisdiction over DCEO or DuPont, and no
consent, approval, authorization or order of, or qualification with,
any governmental body or agency is required for the performance by
DCEO or DuPont of their respective obligations under this Agreement,
except such as may be required by the securities or Blue Sky laws of
the various states in connection with offer and sale of the Shares;
(iii) DCEO has valid title to the Shares to be sold by it and
the legal right and power, and all authorization and approval required
by law, to enter into this Agreement and to sell, transfer and deliver
the Shares to be sold by it; and
(iv) upon payment for the Shares to be sold by DCEO as provided
herein, delivery of such Shares, as directed by the Underwriters, to
Cede & Co. ("Cede") or such other nominee as may be designated by The
Depository Trust Company ("DTC"), registration of such Shares in the
name of Cede or such other nominee and the crediting of such Shares on
the books of DTC to "securities accounts" (as defined in Section 8-501
of the Uniform
15
<PAGE>
Commercial Code (the "UCC")) of the Underwriters, (A) DTC shall be a
"protected purchaser" of such Shares within the meaning of Section 8-
303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters
will acquire a valid security entitlement in respect of such Shares
and (C) no action based on any "adverse claim" (as defined in Section
8-102 of the UCC) to such Shares may be asserted against the
Underwriters with respect to such security entitlement; it being
understood that for the purpose of this opinion, DCEO may assume that
when such payment, delivery and crediting occur, (x) such Shares will
have been registered in the name of Cede or another nominee designated
by DTC, in each case on the Company's share registry in accordance
with its certificate of incorporation, bylaws and applicable law, (y)
DTC will be registered as a "clearing corporation" within the meaning
of Section 8-102 of the UCC, and (z) appropriate entries to the
securities accounts of the several Underwriters on the records of DTC
will have been made pursuant to the UCC.
(g) The Underwriters shall have received on the Closing Date an
opinion of Davis Polk & Wardwell, counsel for the Underwriters, dated the
Closing Date, covering the matters referred to in Sections 6(c)(iii),
6(c)(iv) and 6(c)(v) (but only as to the statements in the Prospectus under
"Underwriters") and 6(c)(vii)(B), (C) and (D) above.
With respect to Section 6(c)(vii) above, Brobeck, Phleger & Harrison
LLP 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 is without independent check or verification except as
specified. With respect to Section 6(c)(vii) above, Davis Polk & Wardwell
may state that their opinion and belief are based upon their participation
in the preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto (other than the documents incorporated by
reference) and review and discussion of the contents thereof (including
documents incorporated therein by reference), but are without independent
check or verification except as specified.
The opinion of Brobeck, Phleger & Harrison LLP, John M. Lynn, Esq. and
Senior Counsel for DuPont described in Sections 6(c), 6(d) and 6(f) above
shall be rendered to the Underwriters at the request of the Company or
DuPont, as the case may be and shall so state therein.
16
<PAGE>
(h) The Underwriters shall have received, on each of the date hereof
and the Closing Date, a letter dated the date hereof or the Closing Date,
as the case may be, in form and substance satisfactory to the Underwriters,
from PricewaterhouseCoopers LLP, independent accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained in the Registration Statement
and the Prospectus; provided that the letter delivered on the Closing Date
shall use a "cut-off date" not earlier than the date hereof.
(i) The "lock-up" agreements, each substantially in the form of
Exhibit A hereto, between you and executive officers and directors of the
Company relating to sales and certain other dispositions of shares of
Common Stock or certain other securities, delivered to you on or before the
date hereof, shall be in full force and effect on the Closing Date.
The several obligations of the Underwriters to purchase Additional Shares
hereunder are subject to the delivery to you on the Option Closing Date of such
documents as you may reasonably request with respect to the good standing of the
Company, and the due authorization and issuance of the Additional Shares.
7. Covenants of the Company and DuPont. In further consideration of the
agreements of the Underwriters herein contained, the Company and, only with
respect to Section 7(f) below, DuPont, covenants with each Underwriter as
follows:
(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
17
<PAGE>
proposed amendment or supplement to which you reasonably object in
writing, subject however, to compliance with the Securities Act, the
Exchange Act, and the rules and regulations thereunder, and to file
with the Commission within the applicable period specified in Rule
424(b) under the Securities Act any prospectus required to be filed
pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to
a purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses you will furnish to the
Company) to which Shares may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either amendments
or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such states as you shall reasonably
request.
(e) To make generally available to the Company's security
holders and to you as soon as practicable an earning statement
covering the twelve-month period ending 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) 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,
18
<PAGE>
disbursements and expenses of the Company's counsel, the Company's
accountants and counsel and accountants for DCEO and DuPont in
connection with the registration and delivery of the Shares under the
Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements to any of
the foregoing, including all printing costs associated therewith, and
the mailing and delivering of copies thereof to the Underwriters and
dealers, in the quantities hereinabove specified, (ii) all costs and
expenses related to the transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable thereon,
(iii) the cost of printing or producing any Blue Sky or Legal
Investment memorandum in connection with the offer and sale of the
Shares under state securities laws and all expenses in connection with
the qualification of the Shares for offer and sale under state
securities laws as provided in Section 7(d) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection
with the Blue Sky or Legal Investment memorandum, (iv) all filing fees
and reasonable fees and disbursements of counsel to the Underwriters
incurred in connection with the review and qualification of the
offering of the Shares by the National Association of Securities
Dealers, Inc., (v) all costs and expenses incident to listing the
Shares on the Nasdaq National Market, (vi) the cost of printing
certificates representing the Shares, (vii) the costs and charges of
any transfer agent, registrar or depositary, (viii) the costs and
expenses of the Company relating to investor presentations on any
"road show" undertaken in connection with the marketing of the
offering of the Shares, including, without limitation, expenses
associated with the production of road show slides and graphics, fees
and expenses of any consultants engaged in connection with the road
show presentations with the prior approval of the Company, travel and
lodging expenses of the representatives and officers of the Company
and any such consultants, and the cost of any aircraft chartered in
connection with the road show, and (ix) all other costs and expenses
incident to the performance of the obligations of the Company
hereunder for which provision is not otherwise made in this Section.
It is understood, however, that except as provided in this Section,
Section 8 entitled "Indemnity and Contribution", and the last
paragraph of Section 10 below, the Underwriters will pay all of their
costs and expenses, including
19
<PAGE>
fees and disbursements of their counsel, stock transfer taxes payable
on resale of any of the Shares by them, and any advertising expenses
connected with any offers they may make.
The provisions of this Section shall not supersede or otherwise affect any
agreement that the Company, DCEO and DuPont may otherwise have for the
allocation of such expenses among themselves.
8. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon (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 or
DCEO included in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto; provided that the foregoing
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Shares, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Shares to such person, and if the Prospectus (as
so amended or supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities, unless such failure is the result of
noncompliance by the Company with Section 7(a) hereof.
(b) DuPont agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to each Underwriter but
20
<PAGE>
only with reference to information directly relating to DuPont or DCEO included
in the Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, the directors of the Company, the officers of the
Company who sign the Registration Statement, DuPont, DCEO and each person, if
any, who controls the Company, DuPont or DCEO within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company and DuPont to such
Underwriter but only with reference to information relating to such Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 8(a), 8(b) or 8(c), such person (the "indemnified
party") shall promptly notify the person against whom such indemnity may be
sought (the "indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the reasonable fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for (i) all Underwriters and
all persons, if any, who control any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, (ii) the
Company, its directors, its officers who sign the Registration Statement, and
each person, if any, who controls the Company within the meaning of either such
Section and (iii) DuPont, DCEO and each person, if any, who controls DuPont or
DCEO within the meaning of either such Section and that all such reasonable fees
and expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters and such
21
<PAGE>
control persons of the Underwriters, such firm shall be designated in writing by
Morgan Stanley & 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, DCEO and control persons of DuPont or DCEO, such firm
shall be designated in writing by DuPont. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its prior written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(e) To the extent the indemnification provided for in Section 8(a), 8(b)
or 8(c) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the Shares
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the indemnifying party or parties on the one hand and of the indemnified party
or parties on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Company and DuPont on the one hand and the Underwriters on the other hand in
connection with the offering of the Shares shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the Shares
(before deducting expenses) received by each of the Company and DCEO and the
total underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover of the Prospectus, bear to the
aggregate Public Offering Price of the Shares. The relative fault of the
Company and DuPont on the one hand and the Underwriters on the other hand shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or DuPont or by
the
22
<PAGE>
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
Underwriters' respective obligations to contribute pursuant to this Section 8
are several in proportion to the respective number of Shares they have purchased
hereunder, and not joint.
(f) The Company, DuPont and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 8 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in Section 8(e). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 8 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(g) The indemnity and contribution provisions contained in this Section 8
and the representations, warranties and other statements of the Company, DCEO
and DuPont contained in this Agreement shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or 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
directors or any person controlling DuPont and (iii) acceptance of and payment
for any of the Shares.
9. Termination. This Agreement shall be subject to termination by notice
given by you to the Company and DuPont, if (a) after the execution and delivery
of this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board of Options Exchange,
23
<PAGE>
the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading of
any securities of the Company shall have been suspended on any exchange or in
any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses 9(a)(i) through 9(a)(iv), such event, singly or
together with any other such event, makes it, in your judgment, impracticable to
market the Shares on the terms and in the manner contemplated in the Prospectus.
10. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may be, any
one or more of the Underwriters shall fail or refuse to purchase Shares that it
has or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule I bears to the aggregate number of
Firm Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase the
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; provided that in no event shall the number of
Shares that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 10 by an amount in excess of one-ninth of
such number of Shares without the written consent of such Underwriter. If, on
the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of Firm
Shares to be purchased, and arrangements satisfactory to you, the Company and
DCEO for the purchase of such Firm Shares are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter, the Company or DCEO. In any such case any of
you, the Company or DCEO shall have the right to postpone the Closing Date, but
in no event for longer than seven days, in order that the required changes, if
any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. If, on the Option Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Additional Shares
and the aggregate number of Additional Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Additional Shares to be
purchased, the non-defaulting Underwriters
24
<PAGE>
shall have the option to (i) terminate their obligation hereunder to purchase
Additional Shares or (ii) purchase not less than the number of Additional Shares
that such non-defaulting Underwriters would have been obligated to purchase in
the absence of such default. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company, DCEO or DuPont to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company, DCEO or DuPont shall be unable to perform its
obligations under this Agreement, the party so failing, refusing or unable will
reimburse the Underwriters or such Underwriters as have so terminated this
Agreement with respect to themselves, severally, for all out-of-pocket expenses
(including the fees and disbursements of their counsel) reasonably incurred by
such Underwriters in connection with this Agreement or the offering contemplated
hereunder.
11. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
13. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
25
<PAGE>
Very truly yours,
DUPONT PHOTOMASKS, INC.
By:
-----------------------------------
Name:
Title:
E. I. DU PONT DE NEMOURS AND
COMPANY
By:
-----------------------------------
Name:
Title:
DUPONT CHEMICAL AND ENERGY
OPERATIONS, INC.
By:
-----------------------------------
Name:
Title:
<PAGE>
Accepted as of the date hereof.
MORGAN STANLEY & CO. INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
BEAR, STEARNS & CO. INC.
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
Acting severally on behalf of themselves and
several Underwriters named in
Schedule I hereto.
By: Morgan Stanley & Co. Incorporated
By:
-----------------------------------
Name:
Title:
<PAGE>
SCHEDULE I
UNDERWRITERS
---------------------------------------- ---------------------
Number of Firm Shares
Underwriters To Be Purchased
Morgan Stanley & Co. Incorporated........
Credit Suisse First Boston Corporation...
Bear, Stearns & Co. Inc..................
Donaldson, Lufkin & Jenrette Securities
Corporation..........................
---------------------
Total Firm Shares....................
<PAGE>
EXHIBIT A
[FORM OF LOCK-UP LETTER]
------------------------
June __, 2000
Morgan Stanley & Co. Incorporated
Credit Suisse First Boston Corporation
Bear, Stearns & Co. Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Dear Sirs and Mesdames:
The undersigned understands that Morgan Stanley & Co. Incorporated ("Morgan
Stanley") proposes to enter into an Underwriting Agreement (the "Underwriting
Agreement") with DuPont Photomasks, Inc., a Delaware corporation (the
"Company"), DuPont Chemical and Energy Operations, Inc., a Delaware corporation
("DCEO"), and E. I. du Pont de Nemours and Company, a Delaware corporation,
providing for the public offering (the "Public Offering") by the several
Underwriters, including Morgan Stanley (the "Underwriters"), of approximately
$225,000,000 of the Common Stock, par value $.01 per share, of the Company (the
"Common Stock"), of which approximately $100,000,00 is to be issued and sold by
the Company and approximately $125,000,000 is to be sold by DCEO.
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 Morgan Stanley 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
<PAGE>
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 Morgan Stanley 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
