<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 14, 1997
Registration No. 333-36355
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------
SOLUTIA INC.
(Exact name of Registrant as specified in its Charter)
<TABLE>
<S> <C> <C>
DELAWARE 28 43-1781797
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
------------------------------
10300 Olive Boulevard,
P.O. Box 66760
St. Louis, Missouri 63166-6760
(314) 674-1000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
------------------------------
Karl R. Barnickol, Esq.
General Counsel
Solutia Inc.
10300 Olive Boulevard, P.O. Box 66760, St. Louis, Missouri 63166-6760
(314) 674-1000
(Address, including zip code, and telephone number, including
area code, of agent for service of process)
------------------------------
with copies to:
<TABLE>
<S> <C>
Eric S. Robinson, Esq. Robert M. Thomas, Jr., Esq.
Wachtell, Lipton, Rosen & Katz Sullivan & Cromwell
51 West 52nd Street 125 Broad Street
New York, New York 10019 New York, New York 10004
(212) 403-1000 (212) 558-4000
</TABLE>
------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement is declared effective.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If the delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===========================================================================================================================
PROPOSED PROPOSED MAXIMUM
MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED BE REGISTERED PER UNIT(1) PRICE(1) FEE(2)
<S> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------------
Debt Securities..................................... $600,000,000 100% $600,000,000 $181,819(3)
===========================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of determining the registration fee.
(2) Calculated pursuant to Rule 457.
(3) Previously paid.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES EXCHANGE COMMISSION, ACTING PURSUANT TO
SAID SECTION 8(a), MAY DETERMINE.
<PAGE> 2
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) EXHIBITS:
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------------------------------------------------------------------------------
<S> <C>
1(a) Form of Underwriting Agreement relating to the Notes and the 2037 Debentures
1(b) Form of Underwriting Agreement relating to the 2027 Debentures
2 Distribution Agreement**
3(a) Restated Certificate of Incorporation of the Company**
3(b) By-Laws of the Company**
4(a) Rights Agreement (incorporated by reference to Exhibit 4 of the Company's
Registration Statement on Form 10 filed on August 7, 1997 (the "Form 10"))
4(b) Form of Indenture**
4(c) Form of Note**
4(d) Form of 2027 Debenture**
4(e) Form of 2037 Debenture**
5 Opinion of Karl R. Barnickol, General Counsel of the Company regarding legality of
the Securities**
10(a) Employee Benefits Allocation Agreement**
10(b) Tax Sharing and Indemnification Agreement**
10(c) Solutia Inc. Management Incentive Replacement Plan**
10(d) Solutia Inc. 1997 Stock-Based Incentive Plan**
10(e) Solutia Inc. Non-Employee Director Compensation Plan**
10(f) $800,000,000 Credit Agreement, dated as of August 14, 1997, among Solutia Inc., the
initial lenders named therein, Bank of America National Trust and Savings
Association ("Bank of America") and Citibank, N.A. ("Citibank")**
10(g) $400,000,000 Credit Agreement, dated as of August 14, 1997, among Solutia Inc., the
initial lenders named therein, Bank of America and Citibank**
10(h) Form of Employment Agreement with Named Executive Officers**
10(i) Form of Employment Agreement with other executive officers**
12 Computation of ratio of earnings to fixed charges**
21 Subsidiaries of the Company**
23(a) Consent of Deloitte & Touche LLP
23(b) Consent of Karl R. Barnickol, General Counsel of the Company (included in Exhibit 5
above)**
24(a) Powers of Attorney**
25 Statement of Eligibility and Qualification on Form T-1 of The Chase Manhattan Bank,
as Trustee under the Indenture**
27 Financial Data Schedule**
</TABLE>
- ---------------
** Previously filed
II-1
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this amendment to registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the County of St.
Louis, State of Missouri, on October 13, 1997.
SOLUTIA INC.
By: /s/ ROBERT A. CLAUSEN
-----------------------------------
Robert A. Clausen
Senior Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this amendment
to its registration statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------------------------- ---------------------------------------- -----------------
<S> <C> <C>
* Chairman, Chief Executive Officer and October 13, 1997
- ----------------------------------------- Director (Principal Executive Officer)
Robert G. Potter
* President and Director October 13, 1997
- -----------------------------------------
John C. Hunter III
/s/ ROBERT A. CLAUSEN Senior Vice President and Chief October 13, 1997
- ----------------------------------------- Financial Officer (Principal Financial
Robert A. Clausen Officer)
* Vice President and Controller (Principal October 13, 1997
- ----------------------------------------- Accounting Officer)
Roger S. Hoard
* Director October 13, 1997
- -----------------------------------------
Robert T. Blakely
* Director October 13, 1997
- -----------------------------------------
Joan T. Bok
* Director October 13, 1997
- -----------------------------------------
Paul H. Hatfield
* Director October 13, 1997
- -----------------------------------------
Robert H. Jenkins
* Director October 13, 1997
- -----------------------------------------
Howard M. Love
* Director October 13, 1997
- -----------------------------------------
Frank A. Metz
* Director October 13, 1997
- -----------------------------------------
William D. Ruckelshaus
* Director October 13, 1997
- -----------------------------------------
John B. Slaughter
</TABLE>
* Karl R. Barnickol, by signing his name hereto, does sign this document on
behalf of the above noted individuals, pursuant to powers of attorney duly
executed by such individuals which have been filed as an Exhibit to this
Registration Statement.
/s/ KARL R. BARNICKOL
--------------------------------------
Name: Karl R. Barnickol
Attorney-in-fact
II-2
<PAGE> 4
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -------------------------------------------------------------------------
<S> <C> <C>
1(a) Form of Underwriting Agreement relating to the Notes and the 2037
Debentures
1(b) Form of Underwriting Agreement relating to the 2027 Debentures
2 Distribution Agreement**
3(a) Restated Certificate of Incorporation of the Company**
3(b) By-Laws of the Company**
4(a) Rights Agreement (incorporated by reference to Exhibit 4 of the Company's
egistration Statement on Form 10 filed on August 7, 1997 (the "Form 10"))
4(b) Form of Indenture**
4(c) Form of Note**
4(d) Form of 2027 Debenture**
4(e) Form of 2037 Debenture**
5 Opinion of Karl R. Barnickol, General Counsel of the Company regarding
legality of the Securities**
10(a) Employee Benefits Allocation Agreement**
10(b) Tax Sharing and Indemnification Agreement**
10(c) Solutia Inc. Management Incentive Replacement Plan**
10(d) Solutia Inc. 1997 Stock-Based Incentive Plan**
10(e) Solutia Inc. Non-Employee Director Compensation Plan**
10(f) $800,000,000 Credit Agreement, dated as of August 14, 1997, among Solutia
Inc., the initial lenders named therein, Bank of America National Trust
and Savings Association ("Bank of America") and Citibank, N.A.
("Citibank")**
10(g) $400,000,000 Credit Agreement, dated as of August 14, 1997, among Solutia
Inc., the initial lenders named therein, Bank of America and Citibank**
10(h) Form of Employment Agreement with Named Executive Officers**
10(i) Form of Employment Agreement with other executive officers**
12 Computation of ratio of earnings to fixed charges**
21 Subsidiaries of the Company**
23(a) Consent of Deloitte & Touche LLP
23(b) Consent of Karl R. Barnickol, General Counsel of the Company (included in
Exhibit 5 above)**
24(a) Powers of Attorney**
25 Statement of Eligibility and Qualification on Form T-1 of The Chase
Manhattan Bank, as Trustee under the Indenture**
27 Financial Data Schedule**
</TABLE>
- ---------------
** Previously filed
<PAGE> 1
EXHIBIT 1(a)
FORM OF
SOLUTIA INC.
% NOTES DUE 2002
% DEBENTURES DUE 2037
UNDERWRITING AGREEMENT
______________, 1997
Goldman, Sachs & Co.,
Chase Securities Inc.,
J.P. Morgan Securities Inc.,
NationsBanc Montgomery Securities, Inc.,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
Solutia Inc., a Delaware corporation (the "Company"), proposes, subject to
the terms and conditions stated herein, to issue and sell to the Underwriters
named in Schedule I hereto (the "Underwriters") an aggregate of $__________
principal amount of the ____% Notes due 2002 (the "Notes") and $__________
principal amount of the ____% Debentures due 2037 (the "Debentures" and,
together with the Notes, the "Securities"). The Company is concurrently
proposing to issue and sell pursuant to a separate underwriting agreement an
aggregate of $__________ principal amount of its ____% Debentures due 2027 (the
"2027 Debentures").
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-36355)
(including all pre-effective amendments thereto, the "Initial Registration
Statement") in respect of the Securities has been filed with the Securities
and Exchange Commission (the "Commission"); the Initial Registration
Statement and any post-effective amendment thereto, each in the form
heretofore delivered to you, and, excluding exhibits thereto to you for
each of the other Underwriters, have been declared effective by the
Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a "Rule 462(b) Registration
Statement"), filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended (the "Act"), which will become effective upon filing, no
other document with respect to the Initial Registration Statement has
heretofore been filed with the Commission; and no stop order suspending the
effectiveness of the Initial Registration Statement, any post-effective
amendment thereto or the Rule 462(b) Registration Statement has been issued
and no proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial Registration
Statement and incorporated by reference in the Rule 462(b) Registration
<PAGE> 2
Statement, if any, or filed with the Commission pursuant to Rule 424(a) of
the rules and regulations of the Commission under the Act, is hereinafter
called a "Preliminary Prospectus"; the various parts of the Initial
Registration Statement and the Rule 462(b) Registration Statement, if any,
including all exhibits thereto but excluding Form T-1 and including the
information contained in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section
5(a) hereof and deemed by virtue of Rule 430A under the Act to be part of
the Initial Registration Statement at the time it was declared effective or
the Rule 462(b) Registration Statement, if any, at the time it became
effective, each as amended at the time such part of such registration
statement became effective, are hereinafter collectively called the
"Registration Statement"; and such final prospectus, in the form first
filed pursuant to Rule 424(b) under the Act, is hereinafter called the
"Prospectus");
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the rules and regulations
of the Commission thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
Goldman, Sachs & Co. expressly for use therein;
(c) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment thereto
and as of the applicable filing date as to the Prospectus and any amendment
or supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through Goldman, Sachs & Co.
expressly for use therein;
(d) Other than as set forth or contemplated in the Prospectus, since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, other than changes relating to the
distribution by Monsanto Company on September 1, 1997 of all of the
outstanding common stock of the Company to the stockholders of Monsanto
Company (the "Spinoff") or, since September 1, 1997, changes in capital
stock pursuant to employee plans and changes in treasury stock in
connection with the Company's announced stock repurchase plan or pursuant
to employee plans, there has not been any material change in the capital
stock or increase in long-term debt of the Company and its subsidiaries
considered as a whole or any material adverse change, or any development
known to the Company involving a prospective material adverse change, in or
affecting the financial position, stockholders' equity or results of
operations of the Company and its subsidiaries considered as a whole;
2
<PAGE> 3
(e) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
power and authority to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification, other than
where the failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole; and each of Monchem International, Inc., a Delaware corporation, and
Solutia Europe N.V./S.A., a Belgian corporation (each a "Principal
Subsidiary"), has been duly incorporated and is validly existing as a
corporation in good standing (to the extent applicable) under the laws of
its jurisdiction of incorporation;
(f) The Company has an authorized capitalization of 610,000,000 shares
of all classes of capital stock, of which 10,000,000 shares are preferred
stock, $0.01 par value, and 600,000,000 shares are common stock, $0.01 par
value, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable; and all of the issued shares of capital stock of each
Principal Subsidiary of the Company have been duly and validly authorized
and issued, are fully paid and non-assessable and (except for shares
necessary to qualify directors or to maintain any minimum number of
stockholders required by law) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims;
(g) The Securities have been duly authorized and, when validly
authenticated, issued and delivered pursuant to the Indenture and this
Agreement, will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the indenture to be dated as
of October 1, 1997 (the "Indenture") between the Company and The Chase
Manhattan Bank, as Trustee (the "Trustee"), under which they are to be
issued, which will be substantially in the form filed as an exhibit to the
Registration Statement; the Indenture has been duly authorized by the
Company and duly qualified under the Trust Indenture Act and, when executed
and delivered by the Company and the Trustee, will constitute a valid and
legally binding instrument of the Company, enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Securities and the Indenture will conform to the descriptions thereof in
the Prospectus;
(h) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture and
this Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon any
of the property or assets of the Company or any Principal Subsidiary
pursuant to the terms of, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of
its Principal Subsidiaries is a party or by which the Company or any of its
Principal Subsidiaries is bound or to which any of the property or assets
of the Company or any of its Principal Subsidiaries is subject, which would
cause a current or prospective material adverse change in or affecting the
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries considered as a whole or affect the validity
of the Securities or the legal authority of the Company to comply with the
Securities, the Indenture or this Agreement; nor will such action result in
any violation of the provisions of the Restated
3
<PAGE> 4
Certificate of Incorporation or By-laws of the Company, or in a violation
of any statute or any order, rule or regulation of any court or
governmental agency or body in the United States having jurisdiction over
the Company or any of its Principal Subsidiaries or any of their properties
which would cause a current or prospective material adverse change in or
affecting the financial position, stockholders' equity or results of
operations of the Company and its subsidiaries considered as a whole or
affect the validity of the Securities or the legal authority of the Company
to comply with the Securities, the Indenture or this Agreement (except to
the extent that the issue and sale of the Securities as contemplated by
this Agreement and the distribution of the Securities by the Underwriters
may result in violations of state securities or Blue Sky laws); and no
consent, approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required for the
issue and sale of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement or the Indenture, except the
registration under the Act of the Securities, such as have been obtained
under the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of the
Securities as contemplated by this Agreement and the distribution of the
Securities by the Underwriters;
(i) There are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property of
the Company or any of its subsidiaries is the subject, other than as set
forth in the Prospectus and other than those which in the aggregate will
not have a material adverse effect on the Company and its subsidiaries
considered as a whole; and, to the best of the Company's knowledge no such
proceedings are contemplated by governmental authorities; and
(j) Deloitte & Touche, LLP, who have certified certain financial
statements of the Company and its subsidiaries, are, to the best of the
Company's knowledge, independent public accountants as to the Company as
required by the Act and the rules and regulations of the Commission
thereunder.
2. Subject to the terms and conditions herein set forth, the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the
respective purchase prices set forth below, the principal amount of securities
set forth opposite the name of such Underwriter in Schedule I hereto:
Securities Purchase Price
---------- --------------
Notes ____% of the aggregate principal amount thereof plus
accrued interest, if any, from __________, 1997 to the
Time of Delivery hereunder;
Debentures ____% of the aggregate principal amount thereof plus
accrued interest, if any, from __________, 1997 to the
Time of Delivery hereunder.
3. Upon the authorization by Goldman, Sachs & Co. of the release of the
Securities, the several Underwriters propose to offer the Securities for sale
upon the terms and conditions set forth in the Prospectus.
4
<PAGE> 5
4. (a) The Securities to be purchased by each Underwriter hereunder will be
represented by one or more definitive global Securities in book-entry form which
will be deposited by or on behalf of the Company with The Depository Trust
Company ("DTC") or its designated custodian. The Company will deliver the
Securities to Goldman, Sachs & Co., for the account of each Underwriter, against
payment by or on behalf of such Underwriter of the purchase price therefor by
wire transfer to an account specified by the Company in Federal (same day)
funds, by causing DTC to credit the Securities to the account of Goldman, Sachs
& Co. at DTC. The Company will cause the certificates representing the
Securities to be made available to Goldman, Sachs & Co. for checking at least
twenty-four hours prior to the Time of Delivery (as defined below) at the office
of DTC or its designated custodian (the "Designated Office"). The time and date
of such delivery and payment shall be 9:30 a.m., New York City time, on
__________, 1997 or such other time and date as Goldman, Sachs & Co. and the
Company may agree upon in writing. Such time and date are herein called the"Time
of Delivery".
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Securities, will be delivered at the offices of
Sullivan & Cromwell, 125 Broad Street, New York, New York 10004
(the"Closing Location"), and the Securities will be delivered at the
Designated Office, all at the Time of Delivery. A meeting will be held at
the Closing Location at 2:00 p.m., New York City time, on the New York
Business Day next preceding the Time of Delivery, at which meeting the
final drafts of the documents to be delivered pursuant to the preceding
sentence will be available for review by the parties hereto. For the
purposes of this Section 4,"New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York City are generally authorized or obligated by law
or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Act; to make no
further amendment or any supplement to the Registration Statement or
Prospectus which shall be reasonably disapproved by you promptly after
reasonable notice thereof; to advise you, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish you with copies thereof;
to advise you, promptly after it receives notice thereof, of the issuance
by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or Prospectus, of the
suspension of the qualification of the Securities for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or
Prospectus or suspending any such qualification, to promptly use its best
efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities for offering and sale under
the securities laws of such United States jurisdictions as you may request
and to comply with such laws so as to permit the continuance
5
<PAGE> 6
of sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Securities, provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in
any jurisdiction or to subject itself to taxation for doing business in any
jurisdiction, and provided further that the expense of maintaining any such
qualification more than one year from the date of this Agreement shall be
at your expense;
(c) Prior to 12:00 noon, New York City time, or as promptly thereafter
as reasonably practicable, on the New York Business Day next succeeding the
date of this Agreement and from time to time, to furnish the Underwriters
with copies of the Prospectus in such quantities as you may reasonably
request, and, if the delivery of a prospectus is required at any time prior
to the expiration of nine months after the time of issue of the Prospectus
in connection with the offering or sale of the Securities and if at such
time any event shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary during such same period to amend or
supplement the Prospectus in order to comply with the Act or the Trust
Indenture Act, to notify you and upon your request to prepare and furnish
without charge to each Underwriter and to any dealer participating with
them in the distribution of the Securities as many copies as you may from
time to time reasonably request of an amended Prospectus or a supplement to
the Prospectus which will correct such statement or omission or effect such
compliance; and in case any Underwriter or any such dealer is required to
deliver a prospectus in connection with sales of any of the Securities at
any time nine months or more after the time of issue of the Prospectus,
upon your request but at the expense of such Underwriter or dealer, as the
case may be, to prepare and deliver to such Underwriter or dealer as many
copies as you may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)),
an earnings statement of the Company and its subsidiaries (which need not
be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company, Rule 158);
(e) During the period beginning from the date hereof and continuing to
and including the earlier of the Time of Delivery and such earlier time as
you may notify the Company, not to offer, sell, contract to sell or
otherwise dispose of, except as provided hereunder any securities of the
Company that mature more than one year after the Time of Delivery and that
are substantially similar to the Securities (other than the 2027
Debentures) without the prior written consent of Goldman, Sachs & Co.;
(f) To use the net proceeds received by it from the sale of the
Securities pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds"; and
(g) If the Company elects to rely upon Rule 462(b), to file a Rule
462(b) Registration Statement with the Commission in compliance with Rule
462(b) by 10:00 P.M., Washington, D.C. time, on the date of this Agreement,
and at the time of filing either to pay to the Commission the filing fee
for the Rule 462(b) Registration Statement or to give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the
Act.
6
<PAGE> 7
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and (except as
otherwise provided in Section 5(c) hereof) amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriters and any
other dealers participating in the distribution of the Securities; (ii) the
cost of printing or producing any Agreement among Underwriters, this Agreement,
the Indenture, any Blue Sky and Legal Investment Memoranda and any other
documents in connection with the offering, purchase, sale and delivery of the
Securities; (iii) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees (not to exceed $5,000) and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with any Blue Sky and legal investment
surveys; (iv) any fees charged by securities rating services for rating the
Securities; (v) any filing fees incident to any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (vi) the cost of preparing the Securities; (vii) the fees and
expenses of the Trustee and any agent of the Trustee and the fees and
disbursements of counsel for the Trustee in connection with the Indenture and
the Securities; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, and Sections 8 and 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder shall be subject, in their
discretion, to the condition that all representations and warranties and other
statements of the Company herein are, at and as of the Time of Delivery, true
and correct in all material respects, the condition that the Company shall have
performed in all material respects all of its obligations hereunder theretofore
to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section
5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.
Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Sullivan & Cromwell, counsel for the Underwriters, shall have
furnished to you such opinion or opinions, dated the Time of Delivery, with
respect to incorporation of the Company, the validity of the Indenture, the
validity of the Securities being delivered at such Time of Delivery, the
Registration Statement, the Prospectus, and such other related matters as
you may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to
pass upon such matters;
(c) Karl R. Barnickol, General Counsel for the Company, shall have
furnished to you his written opinion, dated the Time of Delivery, in form
and substance satisfactory to you, to the effect that:
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<PAGE> 8
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus; and the Company
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification other than where the
failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its subsidiaries considered
as a whole;
(ii) The Company has an authorized capitalization of 610,000,000
shares of all classes of capital stock, of which 10,000,000 shares are
preferred stock, $0.01 par value, and 600,000,000 shares are common
stock, $0.01 par value, and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued and are
fully paid and non-assessable;
(iii)Each Principal Subsidiary of the Company is a corporation
duly incorporated and validly existing in good standing (to the extent
applicable) under the laws of its jurisdiction of incorporation;
(iv) The Company owns directly or indirectly through one or more
wholly-owned subsidiaries all of the issued and outstanding equity
securities of the Principal Subsidiaries (except as specified in
Section 1(f) of this Agreement), free and clear of liens, encumbrances,
equities and claims; all such securities are validly authorized,
issued, fully paid and non-assessable; and neither the Company nor any
such wholly-owned subsidiary is subject to personal liability by reason
of being an owner thereof;
(v) To the best of such counsel's knowledge there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject, other than as set forth in the
Prospectus and other than those which in the aggregate will not have a
material adverse effect on the Company and its subsidiaries considered
as a whole;
(vi) The issue and sale of the Securities and the compliance by
the Company with all of the provisions of the Securities, the Indenture
and this Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach of
any of the terms or provisions of, or constitute or result in a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the Company or any
Principal Subsidiary pursuant to the terms of, any indenture, mortgage,
deed of trust, loan agreement or other similar agreement or instrument
known to such counsel, after such reasonable investigation as he deems
necessary, to which the Company or any of its Principal Subsidiaries is
a party or by which the Company or any of its Principal Subsidiaries is
bound or to which any of the property or assets of the Company or any
of its Principal Subsidiaries is subject which would cause a current or
prospective material adverse change in or affecting the financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries considered as a whole or affect the validity of
the Securities or the legal authority of the Company to comply with the
Securities, the Indenture or this Agreement; nor will such actions
result in any violation of the provisions of the Restated Certificate
of Incorporation or By-laws of the Company, or in any violation of any
statute or any order, rule or regulation of any court or governmental
agency or body in the United States having jurisdiction over the
Company or any of its subsidiaries or any of their properties which
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<PAGE> 9
would cause a current or prospective material adverse change in or
affecting the financial position, stockholders' equity or results of
operations of the Company and its subsidiaries considered as a whole or
affect the validity of the Securities or the legal authority of the
Company to comply with the Securities, the Indenture or this Agreement
(except to the extent that the issue and sale of the Securities as
contemplated by this Agreement and the distribution of the Securities
by the Underwriters may result in violations of state securities or
Blue Sky laws); and such counsel does not know of any contracts or
other documents of a character required to be filed as an exhibit to
the Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed or
described as required; and
(vii) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body in
the United States having jurisdiction over the Company is required for
the issue and sale of the Securities or the consummation by the Company
of the other transactions contemplated by this Agreement or the
Indenture, except such as have been obtained under the Act and the
Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
In rendering the foregoing opinion, such counsel may rely on opinions
of local counsel satisfactory in form and scope to counsel for the
Underwriters.
(d) Wachtell, Lipton, Rosen & Katz, counsel for the Company, shall have
furnished to you their written opinion, dated the Time of Delivery, in form
and substance reasonably satisfactory to you, to the effect that:
(i) This Agreement has been duly authorized, executed and
delivered by the Company.
(ii) The Securities have been duly authorized, executed and
delivered by the Company and, when duly authenticated in accordance
with the Indenture and delivered to and paid for by the Underwriters in
accordance with this Agreement, will constitute valid and binding
obligations of the Company entitled to the benefits provided by the
Indenture, subject to the effect of (A) bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting the rights of creditors generally and (B) the application of
general principles of equity (regardless of whether enforcement is
considered in proceedings at law or in equity) and the Securities and
the Indenture conform in all material respects to the descriptions
thereof in the Prospectus.
(iii) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding instrument
of the Company enforceable in accordance with its terms, subject to the
effect of (A) bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting the rights of creditors
generally and (B) the application of general principles of equity
(regardless of whether enforcement is considered in proceedings at law
or in equity); and the Indenture has been duly qualified under the
Trust Indenture Act.
(iv) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company prior
to the Time of Delivery (other than
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<PAGE> 10
the financial statements and related schedules and notes and other
financial data contained therein, as to which such counsel need express
no opinion) comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the rules and
regulations thereunder.
In rendering such opinions, such counsel may rely (A) upon the opinion
furnished to the Underwriters pursuant to Section 7(c) and (B) as to
matters of fact, to the extent such counsel deem proper, on certificates of
responsible officers of the Company and certificates or other written
statements of officials of jurisdictions having custody of documents
respecting the corporate existence or good standing of the Company.
With respect to the matters to be covered in paragraph (iv) above,
counsel may state that their opinion is based upon their participation in the
preparation of the Registration Statement and the Prospectus and any amendment
or supplement thereto but is without independent check or verification. Such
counsel shall state that they have not verified, and are not passing upon and do
not assume any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus, but that
in the course of such participation, no facts have come to such counsel's
attention which lead such counsel to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the Company
prior to the Time of Delivery (other than the financial statements and related
schedules and notes and other financial data contained therein, as to which such
counsel need express no belief) contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that, as of its date, the
Prospectus or any further amendment or supplement thereto made by the Company
prior to the Time of Delivery (other than the financial statements and related
schedules and notes and other financial data contained therein, as to which such
counsel need express no belief) contained an untrue statement of a material fact
or omitted to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading or
that, as of the Time of Delivery, the Prospectus or any further amendment or
supplement thereto made by the Company prior to the Time of Delivery (other than
the financial statements and related schedules and notes and other financial
data therein, as to which such counsel need express no belief)
contains an untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(e) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of
any post-effective amendment to the Registration Statement filed subsequent
to the date of this Agreement and also at the Time of Delivery, Deloitte &
Touche LLP shall have furnished to you a letter or letters, dated the
respective dates of delivery thereof, in form and substance satisfactory
to you, to the effect set forth in Annex I hereto;
(f) Other than as set forth or contemplated in the Prospectus, since
the respective dates as of which information is given in the Prospectus,
other than changes relating to the Spinoff and changes in capital stock
pursuant to employee plans and changes in treasury stock in connection with
the Company's announced stock repurchase plan or pursuant to employee
plans, there shall not have been any material change in the capital stock
or increase in long-term debt of the Company or any of its subsidiaries or
any material change, or any development involving a prospective material
change, in or affecting the financial position, stockholders' equity or
results of operations of the Company and its subsidiaries considered as a
whole, the effect of which is in the reasonable judgment of the
Underwriters so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the Prospectus;
(g) On or after the date hereof no downgrading shall have occurred in
the rating accorded the Company's debt securities by any one of the
following statistical rating
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<PAGE> 11
organizations: Standard & Poor's Corporation, Moody's Investors Services,
Inc. and Duff & Phelps;
(h) On or after the date hereof there shall not have occurred any of
the following events, the effect of which in each case, in the reasonable
judgment of the Underwriters, is such as to make it impracticable for
the Underwriters to market the Securities or enforce contracts for the sale
of the Securities: (i) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war, (ii) a declaration of a banking moratorium by either
Federal or New York State authorities, (iii) a suspension or halt in
trading on the New York Stock Exchange in any securities of the Company
which adversely affects the marketing of the Securities or (iv) a
suspension or limitation in trading in securities generally on the New York
Stock Exchange or the establishment of minimum prices on such Exchange;
(i) The Company shall have used its best efforts to comply with the
provisions of Section 5(c) hereof with respect to the furnishing of
prospectuses on the New York Business Day next succeeding the date of this
Agreement; and
(j) The Company shall have furnished or caused to be furnished to you
at the Time of Delivery certificates of officers of the Company
satisfactory to you as to the accuracy in all material respects of the
representations and warranties of the Company herein at and as of such Time
of Delivery, as to the performance by the Company in all material respects
of all of its obligations hereunder to be performed at or prior to such
Time of Delivery and as to the matters set forth in subsection (a) of this
Section.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any amendment or
supplement thereto in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through Goldman, Sachs & Co.
expressly for use therein; provided, further, that if any Preliminary
Prospectus, the Prospectus, or any amendments or supplements thereto, contained
any alleged untrue statement or allegedly omitted to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading and such statement or omission shall have been corrected in a
revised Preliminary Prospectus, the Prospectus or the Prospectus as amended or
supplemented, the Company shall not be liable to any Underwriter under this
subsection (a) with respect to such alleged untrue statement or alleged omission
to the extent that any such loss, claim, damage or liability of such Underwriter
results from the fact that such Underwriter sold Securities to a person to whom
there was not sent or given at or prior to the written confirmation of such
sale, a copy of a revised Preliminary Prospectus, the Prospectus or the
Prospectus as amended or supplemented, as the
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<PAGE> 12
case may be, containing a correction of such alleged misstatement or omission,
if the Company has made available copies thereof to such Underwriter prior to
the confirmation of such sale; and provided, further, that the Company shall not
be liable to any Underwriter under this subsection (a) to the extent that any
such loss, claim, damage or liability of such Underwriter results from the use
by such Underwriter of the Prospectus as amended or supplemented or the
Prospectus as amended or supplemented as it may be further amended or
supplemented, as the case may be (i) otherwise than in connection with an offer
or sale of the Securities or (ii) at any time nine months or more after the time
of issue of the Prospectus as amended or supplemented unless the Company has
prior to such use amended or supplemented the Prospectus as amended or
supplemented to comply with Section 10(a)(3) of the Act if required pursuant to
Section 5(c) hereof and such Underwriter uses the Prospectus as amended or
supplemented or as so further amended or supplemented.
Each Underwriter acknowledges that the indemnity agreement in this
subsection (a) does not extend to any liability which such Underwriter might
have under Section 5(b) of the Act by reason of the fact that such Underwriter
sold Securities to a person to whom there was not sent or given, at or prior to
the written confirmation of such sale, a copy of the Prospectus or the
Prospectus as amended or supplemented, as the case may be, if the Company has
made available copies thereof to such Underwriter.
For purposes of this subsection (a) the Prospectus and the Prospectus
as amended or supplemented or any amendment or supplement relating thereto shall
not be deemed to have been made available to an Underwriter until (x) such
Underwriter has received the same or (y) such time after the receipt thereof by
you as would permit you with reasonable diligence to deliver the same to such
Underwriter.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance
upon and in conformity with written information furnished to the Company by
such Underwriter through Goldman, Sachs & Co. expressly for use therein;
and will reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any
such action or claim.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof and in the event that such indemnified
party shall not so notify the indemnifying party within 30 days following
receipt of any such notice by such indemnified party, the indemnifying
party shall have no further liability under such subsection to such
indemnified party unless such indemnifying party shall have received other
notice addressed and delivered in the manner provided in the second
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<PAGE> 13
paragraph of Section 12 hereof of the commencement of such action; but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under
such subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof as provided above, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof,
the indemnifying party shall not be liable to such indemnified party under
such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under subsection (a) or (b) above in
respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall,
in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters on the other from the
offering of the Securities. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c)
above, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the Underwriters,
in each case as set forth in the table on the cover page of the Prospectus.
The relative fault 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 on the one hand or the Underwriters on
the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed
to include 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 subsection (d), 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 which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission.
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No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (d) to contribute are several in proportion
to their respective underwriting obligations with respect to the Securities
and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of
the Company and to each person, if any, who controls the Company within the
meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Securities which it has agreed to purchase hereunder, you may in your discretion
arrange for you or another party or other parties to purchase such Securities on
the terms contained herein. If within thirty-six hours after such default by any
Underwriter you do not arrange for the purchase of such Securities, then the
Company shall be entitled to a further period of thirty-six hours within which
to procure another party or other parties satisfactory to you to purchase such
Securities on such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the purchase of
such Securities, or the Company notifies you that it has so arranged for the
purchase of such Securities, you or the Company shall have the right to postpone
the Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments to the Registration Statement or
the Prospectus which in your opinion may thereby be made necessary. The
term"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by you and the
Company as provided in subsection (a) above, the aggregate principal amount
of the Securities which remains unpurchased does not exceed one-eleventh of
the aggregate principal amount of all the Securities, then the Company
shall have the right to require each non-defaulting Underwriter to purchase
the principal amount of Securities which such Underwriter agreed to
purchase hereunder and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the principal amount
of Securities which such Underwriter agreed to purchase hereunder) of the
Securities of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by you and the
Company as provided in subsection (a) above, the aggregate principal amount
of Securities which remains unpurchased exceeds one-eleventh of the
aggregate principal amount of all the Securities, or if the Company shall
not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Securities of a defaulting
Underwriter or Underwriters, then this Agreement shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the
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<PAGE> 15
Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof, the
Company shall not then be under any liability to any Underwriter except as
provided in Sections 6 and 8 hereof; but, if for any other reason, the
Securities are not delivered by or on behalf of the Company as provided herein,
the Company will reimburse the Underwriters through you for all out-of-pocket
expenses approved in writing by you, including fees and disbursements of
counsel, reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Securities, but the Company shall then be
under no further liability to any Underwriter except as provided in Sections 6
and 8 hereof.
12. The parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement made or given by you jointly or by
Goldman, Sachs & Co. on behalf of you as the Underwriters.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you in care of Goldman, Sachs & Co., 85 Broad Street,
New York, New York 10004, Attention: Registration Department; and if to the
Company shall be delivered or sent by mail or facsimile transmission to the
address of the Company set forth in the Registration Statement, Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Company by you upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent provided in Sections 8 and
10 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
15
<PAGE> 16
16. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such respective counterparts shall together constitute one and the same
instrument.
16
<PAGE> 17
If the foregoing is in accordance with your understanding, please sign and
return to us eight counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement between each of the Underwriters and the
Company.
Very truly yours,
Solutia Inc.
By: ............................
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
Chase Securities Inc.
J.P. Morgan Securities Inc.
NationsBanc Montgomery Securities, Inc.
By: ......................................
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
17
<PAGE> 18
Schedule I
<TABLE>
<CAPTION>
Principal Amount Principal Amount of
of Notes Debentures
Underwriter to be Purchased to be Purchased
----------- --------------- ---------------
<S> <C> <C>
Goldman, Sachs & Co................................. $ $
Chase Securities Inc................................
J.P. Morgan Securities Inc..........................
NationsBanc Montgomery Securities, Inc..............
-------------------- -----------------------
Total.......................................... $ $
==================== =======================
</TABLE>
18
<PAGE> 1
EXHIBIT 1(b)
FORM OF
SOLUTIA INC.
% DEBENTURES DUE 2027
UNDERWRITING AGREEMENT
______________, 1997
Goldman, Sachs & Co.,
Salomon Brothers Inc,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
Solutia Inc., a Delaware corporation (the "Company"), proposes, subject to
the terms and conditions stated herein, to issue and sell to the Underwriters
named in Schedule I hereto (the "Underwriters") an aggregate of $__________
principal amount of the ____% Debentures due 2027 (the "Securities"). The
Company is concurrently proposing to issue and sell pursuant to a separate
underwriting agreement an aggregate of $__________ principal amount of its ___%
Notes due 2002 (the "Notes") and $_____ principal amount of its ____% Debentures
due 2037 (the "2037 Debentures").
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-36355)
(including all pre-effective amendments thereto, the "Initial Registration
Statement") in respect of the Securities has been filed with the Securities
and Exchange Commission (the "Commission"); the Initial Registration
Statement and any post-effective amendment thereto, each in the form
heretofore delivered to you, and, excluding exhibits thereto to you for
each of the other Underwriters, have been declared effective by the
Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a "Rule 462(b) Registration
Statement"), filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended (the "Act"), which will become effective upon filing, no
other document with respect to the Initial Registration Statement has
heretofore been filed with the Commission; and no stop order suspending the
effectiveness of the Initial Registration Statement, any post-effective
amendment thereto or the Rule 462(b) Registration Statement has been issued
and no proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial Registration
Statement and incorporated by reference in the Rule 462(b) Registration
Statement, if any, or filed with the Commission pursuant to Rule 424(a) of
the rules and regulations of the Commission under the Act, is hereinafter
called a "Preliminary Prospectus"; the various parts of the Initial
Registration Statement and the Rule 462(b) Registration Statement, if any,
including all exhibits thereto but excluding Form T-1 and including the
<PAGE> 2
information contained in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section
5(a) hereof and deemed by virtue of Rule 430A under the Act to be part of
the Initial Registration Statement at the time it was declared effective or
the Rule 462(b) Registration Statement, if any, at the time it became
effective, each as amended at the time such part of such registration
statement became effective, are hereinafter collectively called the
"Registration Statement"; and such final prospectus, in the form first
filed pursuant to Rule 424(b) under the Act, is hereinafter called the
"Prospectus");
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the rules and regulations
of the Commission thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
Goldman, Sachs & Co. expressly for use therein;
(c) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment thereto
and as of the applicable filing date as to the Prospectus and any amendment
or supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through Goldman, Sachs & Co.
expressly for use therein;
(d) Other than as set forth or contemplated in the Prospectus, since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, other than changes relating to the
distribution by Monsanto Company on September 1, 1997 of all of the
outstanding common stock of the Company to the stockholders of Monsanto
Company (the "Spinoff") or, since September 1, 1997, changes in capital
stock pursuant to employee plans and changes in treasury stock in
connection with the Company's announced stock repurchase plan or pursuant
to employee plans, there has not been any material change in the capital
stock or increase in long-term debt of the Company and its subsidiaries
considered as a whole or any material adverse change, or any development
known to the Company involving a prospective material adverse change, in or
affecting the financial position, stockholders' equity or results of
operations of the Company and its subsidiaries considered as a whole;
(e) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
power and authority to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties
or conducts any
2
<PAGE> 3
business so as to require such qualification, other than where the failure
to be so qualified or in good standing would not have a material adverse
effect on the Company and its subsidiaries taken as a whole; and each of
Monchem International, Inc., a Delaware corporation, and Solutia Europe
N.V./S.A., a Belgian corporation (each a "Principal Subsidiary"), has been
duly incorporated and is validly existing as a corporation in good standing
(to the extent applicable) under the laws of its jurisdiction of
incorporation;
(f) The Company has an authorized capitalization of 610,000,000 shares
of all classes of capital stock, of which 10,000,000 shares are preferred
stock, $0.01 par value, and 600,000,000 shares are common stock, $0.01 par
value, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable; and all of the issued shares of capital stock of each
Principal Subsidiary of the Company have been duly and validly authorized
and issued, are fully paid and non-assessable and (except for shares
necessary to qualify directors or to maintain any minimum number of
stockholders required by law) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims;
(g) The Securities have been duly authorized and, when validly
authenticated, issued and delivered pursuant to the Indenture and this
Agreement, will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the indenture to be dated as
of October 1, 1997 (the "Indenture") between the Company and The Chase
Manhattan Bank, as Trustee (the "Trustee"), under which they are to be
issued, which will be substantially in the form filed as an exhibit to the
Registration Statement; the Indenture has been duly authorized by the
Company and duly qualified under the Trust Indenture Act and, when executed
and delivered by the Company and the Trustee, will constitute a valid and
legally binding instrument of the Company, enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Securities and the Indenture will conform to the descriptions thereof in
the Prospectus;
(h) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture and
this Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon any
of the property or assets of the Company or any Principal Subsidiary
pursuant to the terms of, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of
its Principal Subsidiaries is a party or by which the Company or any of its
Principal Subsidiaries is bound or to which any of the property or assets
of the Company or any of its Principal Subsidiaries is subject, which would
cause a current or prospective material adverse change in or affecting the
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries considered as a whole or affect the validity
of the Securities or the legal authority of the Company to comply with the
Securities, the Indenture or this Agreement; nor will such action result in
any violation of the provisions of the Restated Certificate of
Incorporation or By-laws of the Company, or in a violation of any statute
or any order, rule or regulation of any court or governmental agency or
body in the United States having jurisdiction over the Company or any of
its Principal Subsidiaries or any of their properties which would cause a
current or prospective material adverse change in or affecting the
financial position, stockholders' equity or results of operations of the
Company and its
3
<PAGE> 4
subsidiaries considered as a whole or affect the validity of the Securities
or the legal authority of the Company to comply with the Securities, the
Indenture or this Agreement (except to the extent that the issue and sale
of the Securities as contemplated by this Agreement and the distribution of
the Securities by the Underwriters may result in violations of state
securities or Blue Sky laws); and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Securities or the consummation by the Company of the transactions
contemplated by this Agreement or the Indenture, except the registration
under the Act of the Securities, such as have been obtained under the Trust
Indenture Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Securities as
contemplated by this Agreement and the distribution of the Securities by
the Underwriters;
(i) There are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property of
the Company or any of its subsidiaries is the subject, other than as set
forth in the Prospectus and other than those which in the aggregate will
not have a material adverse effect on the Company and its subsidiaries
considered as a whole; and, to the best of the Company's knowledge no such
proceedings are contemplated by governmental authorities; and
(j) Deloitte & Touche, LLP, who have certified certain financial
statements of the Company and its subsidiaries, are, to the best of the
Company's knowledge, independent public accountants as to the Company as
required by the Act and the rules and regulations of the Commission
thereunder.
2. Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company,
at a purchase price of ___% of the principal amount thereof, plus accrued
interest, if any, from ______, 1997, the principal amount of securities set
forth opposite the name of such Underwriter in Schedule I hereto.
3. Upon the authorization by Goldman, Sachs & Co. of the release of the
Securities, the several Underwriters propose to offer the Securities for sale
upon the terms and conditions set forth in the Prospectus.
4. (a) The Securities to be purchased by each Underwriter hereunder will
be represented by one or more definitive global Securities in book-entry form
which will be deposited by or on behalf of the Company with The Depository
Trust Company ("DTC") or its designated custodian. The Company will deliver
the Securities to Goldman, Sachs & Co., for the account of each Underwriter,
against payment by or on behalf of such Underwriter of the purchase price
therefor by wire transfer to an account specified by the Company in
Federal (same day) funds, by causing DTC to credit the Securities to the
account of Goldman, Sachs & Co. at DTC. The Company will cause the certificates
representing the Securities to be made available to Goldman, Sachs & Co. for
checking at least twenty-four hours prior to the Time of Delivery (as defined
below) at the office of DTC or its designated custodian (the "Designated
Office"). The time and date of such delivery and payment shall be 9:30 a.m.,
New York City time, on __________, 1997 or such other time and date as Goldman,
Sachs & Co. and the Company may agree upon in writing. Such time and date are
herein called the"Time of Delivery".
4
<PAGE> 5
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Securities, will be delivered at the offices of
Sullivan & Cromwell, 125 Broad Street, New York, New York 10004
(the"Closing Location"), and the Securities will be delivered at the
Designated Office, all at the Time of Delivery. A meeting will be held at
the Closing Location at 2:00 p.m., New York City time, on the New York
Business Day next preceding the Time of Delivery, at which meeting the
final drafts of the documents to be delivered pursuant to the preceding
sentence will be available for review by the parties hereto. For the
purposes of this Section 4,"New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York City are generally authorized or obligated by law
or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Act; to make no
further amendment or any supplement to the Registration Statement or
Prospectus which shall be reasonably disapproved by you promptly after
reasonable notice thereof; to advise you, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish you with copies thereof;
to advise you, promptly after it receives notice thereof, of the issuance
by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or Prospectus, of the
suspension of the qualification of the Securities for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or
Prospectus or suspending any such qualification, to promptly use its best
efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities for offering and sale under
the securities laws of such United States jurisdictions as you may request
and to comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Securities, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction or to subject itself to taxation for doing business in any
jurisdiction, and provided further that the expense of maintaining any such
qualification more than one year from the date of this Agreement shall be
at your expense;
(c) Prior to 12:00 noon, New York City time, or as promptly thereafter
as reasonably practicable, on the New York Business Day next succeeding the
date of this Agreement and from time to time, to furnish the Underwriters
with copies of the Prospectus in such quantities as you may reasonably
request, and, if the delivery of a prospectus is required at any time prior
to the expiration of nine months after the time of issue of the Prospectus
in connection with the offering or sale of the Securities and if at such
time any event shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any
5
<PAGE> 6
material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus in
order to comply with the Act or the Trust Indenture Act, to notify you and
upon your request to prepare and furnish without charge to each Underwriter
and to any dealer participating with them in the distribution of the
Securities as many copies as you may from time to time reasonably request
of an amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance; and in case
any Underwriter or any such dealer is required to deliver a prospectus in
connection with sales of any of the Securities at any time nine months or
more after the time of issue of the Prospectus, upon your request but at
the expense of such Underwriter or dealer, as the case may be, to prepare
and deliver to such Underwriter or dealer as many copies as you may request
of an amended or supplemented Prospectus complying with Section 10(a)(3) of
the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)),
an earnings statement of the Company and its subsidiaries (which need not
be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company, Rule 158);
(e) During the period beginning from the date hereof and continuing to
and including the earlier of the Time of Delivery and such earlier time as
you may notify the Company, not to offer, sell, contract to sell or
otherwise dispose of, except as provided hereunder any securities of the
Company that mature more than one year after the Time of Delivery and that
are substantially similar to the Securities (other than the Notes and the
2037 Debentures) without the prior written consent of Goldman, Sachs & Co.
(f) To use the net proceeds received by it from the sale of the
Securities pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds"; and
(g) If the Company elects to rely upon Rule 462(b), to file a Rule
462(b) Registration Statement with the Commission in compliance with Rule
462(b) by 10:00 P.M., Washington, D.C. time, on the date of this Agreement,
and at the time of filing either to pay to the Commission the filing fee
for the Rule 462(b) Registration Statement or to give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the
Act.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and (except as
otherwise provided in Section 5(c) hereof) amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriters and any
other dealers participating in the distribution of the Securities; (ii) the cost
of printing or producing any Agreement among Underwriters, this Agreement, the
Indenture, any Blue Sky and Legal Investment Memoranda and any other documents
in connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees (not to exceed $5,000) and disbursements of counsel
for the Underwriters in connection with such qualification and in connection
with any Blue Sky and
6
<PAGE> 7
legal investment surveys; (iv) any fees charged by securities rating services
for rating the Securities; (v) any filing fees incident to any required review
by the National Association of Securities Dealers, Inc. of the terms of the sale
of the Securities; (vi) the cost of preparing the Securities; (vii) the fees and
expenses of the Trustee and any agent of the Trustee and the fees and
disbursements of counsel for the Trustee in connection with the Indenture and
the Securities; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, and Sections 8 and 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder shall be subject, in
their discretion, to the condition that all representations and warranties
and other statements of the Company herein are, at and as of the
Time of Delivery, true and correct in all material respects, the condition that
the Company shall have performed in all material respects all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section
5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.
Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Sullivan & Cromwell, counsel for the Underwriters, shall have
furnished to you such opinion or opinions, dated the Time of Delivery, with
respect to incorporation of the Company, the validity of the Indenture, the
validity of the Securities being delivered at such Time of Delivery, the
Registration Statement, the Prospectus, and such other related matters as
you may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to
pass upon such matters;
(c) Karl R. Barnickol, General Counsel for the Company, shall have
furnished to you his written opinion, dated the Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus; and the Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to
require such qualification other than where the failure to be so
qualified or in good standing would not have a material adverse
effect on the Company and its subsidiaries considered as a whole;
(ii) The Company has an authorized capitalization of 610,000,000
shares of all classes of capital stock, of which 10,000,000 shares are
preferred stock, $0.01 par value, and 600,000,000 shares are common
stock, $0.01 par value, and all of the issued shares
7
<PAGE> 8
of capital stock of the Company have been duly and validly authorized
and issued and are fully paid and non-assessable;
(iii) Each Principal Subsidiary of the Company is a corporation
duly incorporated and validly existing in good standing (to the extent
applicable) under the laws of its jurisdiction of incorporation;
(iv) The Company owns directly or indirectly through one or more
wholly-owned subsidiaries all of the issued and outstanding equity
securities of the Principal Subsidiaries (except as specified in
Section 1(f) of this Agreement), free and clear of liens, encumbrances,
equities and claims; all such securities are validly authorized,
issued, fully paid and non-assessable; and neither the Company nor any
such wholly-owned subsidiary is subject to personal liability by reason
of being an owner thereof;
(v) To the best of such counsel's knowledge there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject, other than as set forth in the
Prospectus and other than those which in the aggregate will not have a
material adverse effect on the Company and its subsidiaries considered
as a whole;
(vi) The issue and sale of the Securities and the compliance by
the Company with all of the provisions of the Securities, the Indenture
and this Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach of
any of the terms or provisions of, or constitute or result in a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the Company or any
Principal Subsidiary pursuant to the terms of, any indenture, mortgage,
deed of trust, loan agreement or other similar agreement or instrument
known to such counsel, after such reasonable investigation as he deems
necessary, to which the Company or any of its Principal Subsidiaries is
a party or by which the Company or any of its Principal Subsidiaries is
bound or to which any of the property or assets of the Company or any
of its Principal Subsidiaries is subject which would cause a current or
prospective material adverse change in or affecting the financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries considered as a whole or affect the validity of
the Securities or the legal authority of the Company to comply with the
Securities, the Indenture or this Agreement; nor will such actions
result in any violation of the provisions of the Restated Certificate
of Incorporation or By-laws of the Company, or in any violation of any
statute or any order, rule or regulation of any court or governmental
agency or body in the United States having jurisdiction over the
Company or any of its subsidiaries or any of their properties which
would cause a current or prospective material adverse change in or
affecting the financial position, stockholders' equity or results of
operations of the Company and its subsidiaries considered as a whole or
affect the validity of the Securities or the legal authority of the
Company to comply with the Securities, the Indenture or this Agreement
(except to the extent that the issue and sale of the Securities as
contemplated by this Agreement and the distribution of the Securities
by the Underwriters may result in violations of state securities or
Blue Sky laws); and such counsel does not know of any contracts or
other documents of a character required to be filed as an exhibit to
the Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed or
described as required; and
8
<PAGE> 9
(vii) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body in
the United States having jurisdiction over the Company is required for
the issue and sale of the Securities or the consummation by the Company
of the other transactions contemplated by this Agreement or the
Indenture, except such as have been obtained under the Act and the
Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
In rendering the foregoing opinion, such counsel may rely on opinions
of local counsel satisfactory in form and scope to counsel for the
Underwriters.
(d) Wachtell, Lipton, Rosen & Katz, counsel for the Company, shall have
furnished to you their written opinion, dated the Time of Delivery, in form
and substance reasonably satisfactory to you, to the effect that:
(i) This Agreement has been duly authorized, executed and
delivered by the Company.
(ii) The Securities have been duly authorized, executed and
delivered by the Company and, when duly authenticated in accordance
with the Indenture and delivered to and paid for by the Underwriters in
accordance with this Agreement, will constitute valid and binding
obligations of the Company entitled to the benefits provided by the
Indenture, subject to the effect of (A) bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting the rights of creditors generally and (B) the application of
general principles of equity (regardless of whether enforcement is
considered in proceedings at law or in equity) and the Securities and
the Indenture conform in all material respects to the descriptions
thereof in the Prospectus.
(iii) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding instrument
of the Company enforceable in accordance with its terms, subject to the
effect of (A) bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting the rights of creditors
generally and (B) the application of general principles of equity
(regardless of whether enforcement is considered in proceedings at law
or in equity); and the Indenture has been duly qualified under the
Trust Indenture Act.
(iv) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to the
Time of Delivery (other than the financial statements and related
schedules and notes and other financial data contained therein, as to
which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations thereunder.
In rendering such opinions, such counsel may rely (A) upon the opinion
furnished to the Underwriters pursuant to Section 7(c) and (B) as to
matters of fact, to the extent such counsel deem proper, on certificates of
responsible officers of the Company and certificates or other written
statements of officials of jurisdictions having custody of documents
respecting the corporate existence or good standing of the Company.
9
<PAGE> 10
With respect to the matters to be covered in paragraph (iv) above,
counsel may state that their opinion is based upon their participation in the
preparation of the Registration Statement and the Prospectus and any amendment
or supplement thereto but is without independent check or verification. Such
counsel shall state that they have not verified, and are not passing upon and do
not assume any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus, but that
in the course of such participation, no facts have come to such counsel's
attention which lead such counsel to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the Company
prior to the Time of Delivery (other than the financial statements and related
schedules and notes and other financial data contained therein, as to which such
counsel need express no belief) contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that, as of its date, the
Prospectus or any further amendment or supplement thereto made by the Company
prior to the Time of Delivery (other than the financial statements and related
schedules and notes and other financial data contained therein, as to which such
counsel need express no belief) contained an untrue statement of a material fact
or omitted to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading or
that, as of the Time of Delivery, the Prospectus or any further amendment or
supplement thereto made by the Company prior to the Time of Delivery (other than
the financial statements and related schedules and notes and other financial
data contained therein, as to which such counsel need express no belief)
contains an untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(e) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of
any post-effective amendment to the Registration Statement filed subsequent
to the date of this Agreement and also at the Time of Delivery, Deloitte &
Touche LLP shall have furnished to you a letter or letters, dated the
respective dates of delivery thereof, in form and substance satisfactory
to you, to the effect set forth in Annex I hereto;
(f) Other than as set forth or contemplated in the Prospectus, since
the respective dates as of which information is given in the Prospectus,
other than changes relating to the Spinoff and changes in capital stock
pursuant to employee plans and changes in treasury stock in connection with
the Company's announced stock repurchase plan or pursuant to employee
plans, there shall not have been any material change in the capital stock
or increase in long-term debt of the Company or any of its subsidiaries or
any material change, or any development involving a prospective material
change, in or affecting the financial position, stockholders' equity or
results of operations of the Company and its subsidiaries considered as a
whole, the effect of which is in the reasonable judgment of the
Underwriters so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the Prospectus;
(g) On or after the date hereof no downgrading shall have occurred in
the rating accorded the Company's debt securities by any one of the
following statistical rating organizations: Standard & Poor's Corporation,
Moody's Investors Services, Inc. and Duff & Phelps;
(h) On or after the date hereof there shall not have occurred any of
the following events, the effect of which in each case, in the reasonable
judgment of the Underwriters, is such as to make it impracticable for the
Underwriters to market the Securities or enforce contracts for the sale of
the Securities: (i) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national
emergency or war, (ii) a declaration of a banking moratorium by either
Federal or New York State authorities, (iii) a suspension or halt in
trading on the New York Stock Exchange in any securities of the Company
which adversely affects the marketing of the Securities or (iv) a
suspension or limitation in trading in
10
<PAGE> 11
securities generally on the New York Stock Exchange or the establishment of
minimum prices on such Exchange;
(i) The Company shall have used its best efforts to comply with the
provisions of Section 5(c) hereof with respect to the furnishing of
prospectuses on the New York Business Day next succeeding the date of this
Agreement; and
(j) The Company shall have furnished or caused to be furnished to you
at the Time of Delivery certificates of officers of the Company
satisfactory to you as to the accuracy in all material respects of the
representations and warranties of the Company herein at and as of such Time
of Delivery, as to the performance by the Company in all material respects
of all of its obligations hereunder to be performed at or prior to such
Time of Delivery and as to the matters set forth in subsection (a) of this
Section.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any amendment or
supplement thereto in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through Goldman, Sachs & Co.
expressly for use therein; provided, further, that if any Preliminary
Prospectus, the Prospectus, or any amendments or supplements thereto, contained
any alleged untrue statement or allegedly omitted to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading and such statement or omission shall have been corrected in a
revised Preliminary Prospectus, the Prospectus or the Prospectus as amended or
supplemented, the Company shall not be liable to any Underwriter under this
subsection (a) with respect to such alleged untrue statement or alleged omission
to the extent that any such loss, claim, damage or liability of such Underwriter
results from the fact that such Underwriter sold Securities to a person to whom
there was not sent or given at or prior to the written confirmation of such
sale, a copy of a revised Preliminary Prospectus, the Prospectus or the
Prospectus as amended or supplemented, as the case may be, containing a
correction of such alleged misstatement or omission, if the Company has made
available copies thereof to such Underwriter prior to the confirmation of such
sale; and provided, further, that the Company shall not be liable to any
Underwriter under this subsection (a) to the extent that any such loss, claim,
damage or liability of such Underwriter results from the use by such Underwriter
of the Prospectus as amended or supplemented or the Prospectus as amended or
supplemented as it may be further amended or supplemented, as the case may be
(i) otherwise than in connection with an offer or sale of the Securities or (ii)
at any time nine months or more after the time of issue of the Prospectus as
amended or supplemented unless the Company has prior to such use amended or
supplemented the Prospectus as amended or supplemented to comply with Section
10(a)(3) of the Act if required pursuant to Section 5(c) hereof
11
<PAGE> 12
and such Underwriter uses the Prospectus as amended or supplemented or as so
further amended or supplemented.
Each Underwriter acknowledges that the indemnity agreement in this
subsection (a) does not extend to any liability which such Underwriter might
have under Section 5(b) of the Act by reason of the fact that such Underwriter
sold Securities to a person to whom there was not sent or given, at or prior to
the written confirmation of such sale, a copy of the Prospectus or the
Prospectus as amended or supplemented, as the case may be, if the Company has
made available copies thereof to such Underwriter.
For purposes of this subsection (a) the Prospectus and the Prospectus
as amended or supplemented or any amendment or supplement relating thereto shall
not be deemed to have been made available to an Underwriter until (x) such
Underwriter has received the same or (y) such time after the receipt thereof by
you as would permit you with reasonable diligence to deliver the same to such
Underwriter.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance
upon and in conformity with written information furnished to the Company by
such Underwriter through Goldman, Sachs & Co. expressly for use therein;
and will reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any
such action or claim.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof and in the event that such indemnified
party shall not so notify the indemnifying party within 30 days following
receipt of any such notice by such indemnified party, the indemnifying
party shall have no further liability under such subsection to such
indemnified party unless such indemnifying party shall have received other
notice addressed and delivered in the manner provided in the second
paragraph of Section 12 hereof of the commencement of such action; but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under
such subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof as provided above, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof,
the indemnifying party shall not be liable to such
12
<PAGE> 13
indemnified party under such subsection for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than
reasonable costs of investigation.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under subsection (a) or (b) above in
respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall,
in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters on the other from the
offering of the Securities. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c)
above, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the Underwriters,
in each case as set forth in the table on the cover page of the Prospectus.
The relative fault 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 on the one hand or the Underwriters on
the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed
to include 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 subsection (d), 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 which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (d) to contribute are several
in proportion to their respective underwriting obligations with respect to
the Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 8 shall be in addition to any
liability
13
<PAGE> 14
which the respective Underwriters may otherwise have and shall extend, upon
the same terms and conditions, to each officer and director of the Company
and to each person, if any, who controls the Company within the meaning of
the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Securities which it has agreed to purchase hereunder, you may in your discretion
arrange for you or another party or other parties to purchase such Securities on
the terms contained herein. If within thirty-six hours after such default by any
Underwriter you do not arrange for the purchase of such Securities, then the
Company shall be entitled to a further period of thirty-six hours within which
to procure another party or other parties satisfactory to you to purchase such
Securities on such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the purchase of
such Securities, or the Company notifies you that it has so arranged for the
purchase of such Securities, you or the Company shall have the right to postpone
the Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments to the Registration Statement or
the Prospectus which in your opinion may thereby be made necessary. The
term"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by you and the
Company as provided in subsection (a) above, the aggregate principal amount
of the Securities which remains unpurchased does not exceed one-eleventh of
the aggregate principal amount of all the Securities, then the Company
shall have the right to require each non-defaulting Underwriter to purchase
the principal amount of Securities which such Underwriter agreed to
purchase hereunder and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the principal amount
of Securities which such Underwriter agreed to purchase hereunder) of the
Securities of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by you and the
Company as provided in subsection (a) above, the aggregate principal amount
of Securities which remains unpurchased exceeds one-eleventh of the
aggregate principal amount of all the Securities, or if the Company shall
not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Securities of a defaulting
Underwriter or Underwriters, then this Agreement shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the
Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or
14
<PAGE> 15
director or controlling person of the Company, and shall survive delivery of and
payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof, the
Company shall not then be under any liability to any Underwriter except as
provided in Sections 6 and 8 hereof; but, if for any other reason, the
Securities are not delivered by or on behalf of the Company as provided herein,
the Company will reimburse the Underwriters through you for all out-of-pocket
expenses approved in writing by you, including fees and disbursements of
counsel, reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Securities, but the Company shall then be
under no further liability to any Underwriter except as provided in Sections 6
and 8 hereof.
12. The parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement made or given by you jointly or by
Goldman, Sachs & Co. on behalf of you as the Underwriters.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you in care of Goldman, Sachs & Co., 85 Broad Street,
New York, New York 10004, Attention: Registration Department; and if to the
Company shall be delivered or sent by mail or facsimile transmission to the
address of the Company set forth in the Registration Statement,
Attention: Secretary; provided, however, that any notice to an Underwriter
pursuant to Section 8(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by you upon
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent provided in Sections 8 and
10 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such respective counterparts shall together constitute one and the same
instrument.
15
<PAGE> 16
If the foregoing is in accordance with your understanding, please sign and
return to us eight counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement between each of the Underwriters and the
Company.
Very truly yours,
Solutia Inc.
By: ..............................
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
Salomon Brothers Inc
By: ......................................
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
16
<PAGE> 17
Schedule I
<TABLE>
<CAPTION>
Principal
Amount of
Securities
to be
Underwriter Purchased
----------- ---------
<S> <C>
Goldman, Sachs & Co................................................ $
Salomon Brothers Inc .............................................. -------------
Total......................................................... $
==============
</TABLE>
17
<PAGE> 1
EXHIBIT 23(a)
CONSENT OF INDEPENDENT AUDITORS
Solutia Inc.:
We consent to the use in this Amendment No. 2 to Registration Statement No.
333-36355 of Solutia Inc. of our report, relating to the combined financial
statements, dated May 1, 1997, except for the first and second paragraphs and
the Subsequent Event section of Note 1, as to which the date is September 1,
1997, appearing in the Prospectus, which is part of this Registration Statement,
and of our report, relating to the financial statement schedule, dated May 1,
1997, except for the first and second paragraphs and the Subsequent Event
section of Note 1, as to which the date is September 1, 1997, appearing
elsewhere in this Registration Statement.
We also consent to the reference to us under the heading "Experts" in such
Prospectus.
Deloitte & Touche LLP Signature
DELOITTE & TOUCHE LLP
St. Louis, Missouri
October 14, 1997
